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MINUTES 

OF THK 

PROCEEDINGS 

BaFOttB 

THE HON, JOHN SERGEANT 

or 

PHILADELPHIA, 

£N 

THE MATTER OF THE PEA PATCH ISLAND, 

• REFERRED TO HIM 

AS 

. , SOLE ARBITRATOR 

BETWEEN THE UNITED STATES ON ONE SIDE, AND JAMES HUMPHREY 

ON THE OTHER, 


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[ 21 ] 


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C.vm- m d , 

A record of the proceedings in the matter of the Pea Patch island .— 
A reference to the Hon. John Sergeant , as sole arbitrator or re¬ 
feree. 

October 11, A. D. 1847. 

There appeared this day, at 11 o’clock, a. m., at the office of 
the said arbitrator, in Philadelphia, No. 93, Delaware 4th street, 
(south,) the following persons, viz: the Hon. John M. Clayton, of 
Delaware, the Hon. James A. Bayard, of the same State, both rep¬ 
resenting the United States of America; Jonathan T. Hudson, who 
stated himself to be an agent of James Humphrey. No other per¬ 
son appeared in behalf of said Humphrey. 

The counsel of the United States expressed an opinion that a re¬ 
cord or regular minute should be kept of all that was done. Mr. 
Sergeant introduced to them John Wm. Wallace, who, he said, 
would please to act as secretary. Adjourned by consent of parties, 
and with the approbation of the arbitrator, till Wednesday, Octo¬ 
ber 13, 1847, at the same place, at 10 o’clock, p. m. 


October 13, 1847. 

Met pursuant to adjournment. The same persons present as be¬ 
fore. Adjourned to the district court room, No. 1, S. E. corner 
6th and Chesnut streets. Mr. Sergeant stated that it was a matter 
of public knowledge that the communications between Washington 
and Philadelphia were greatly disordered by the recent flood; that 
General Eaton and Governor Bibb, who represented one of the 
parties in the case, were not present; but that the agreement for 
submission, and an authority from the Department of War, would 
be read by Mr. Wallace, who had agreed to act as secretary. The 
clerk then read the following papers: 

Articles of agreement made and concluded this twenty-seventh day 
of February , A. D. 1847, by and between William L. Marcy , 
Secretary of War , on the part of the United States , and James 
Humphrey , who claims to have now vested in him the full and 
perfect title , under a certain Henry Gale , deceased , to an island 
in the river Delaware , commonly known as the Pea Patch island , 
on which Fort Delaware is being built . 

Whereas, a controversy exists between the United States and the 
said claimant under the said Henry Gale, deceased, as to the title 
to the said island, which was ceded to the United States by the 
State of Delaware; And whereas, by the 2d section of an act of 
Congress, entitled u An act making appropriations,” &c., approved 
August 8th, A. D. 1846, the President of the United States is au¬ 
thorized to take such steps as he may deem advisable for adjusting 



the title to the Pea Patch island, and, should the same he found ad¬ 
verse to the United States, to cause the same to be adjusted by ar¬ 
bitration, according to an agreement entered into between the Sec¬ 
retary of War and the claimants, or their agent: Now this agree¬ 
ment witnessetk: That the said William L. Marcy, the Secretary of 
War, with the approbation of the President of the United States, 
and the said James Humphrey, the claimant under the said Henry 
Gale, have mutually agreed upon, and do hereby appoint John 
Sergeant, esq., of the city of Philadelphia, sole arbitrator, with 
full power and authority, at such times and places as he may ap¬ 
point, to examine witnesses and receive evidence according to the 
rules of law and equity, and to decide the question of the title to 
the said Pea Patch island as derived bv the United States from the 
State of Delaware, and by the said James Humphrey, claiming 
through the said Henry Gale, deceased, from the State of New 
Jersey; and his decision and award, made in writing, shall be final 
and conclusive betw T een the United States and the said James Hum¬ 
phrey, claiming under the said Henry Gale, deceased. And it is 
further mutually agreed, that the said arbitrator may proceed to 
hear the matters submitted to him ex parte , on ten days’ notice 
given by the said claimant, or his attorney, John H. Eaton, esq., 
to the solicitor of the treasury, or, on ten days’ notice given by 
the solicitor of the treasury to the said claimant, or his said attor¬ 
ney. And it is further agreed, that either party may take deposi¬ 
tions of witnesses before a commissioner, to be appointed by the 
arbitrator on reasonable notice to the said solicitor, or to the said 
claimant or his attorney. And it is further agreed that, before 
proceeding to a hearing before the said arbitrator, the said James 
Humphrey shall execute and deliver to the Secretary of War, a 
deed conveying all his right, title, and interest in the said Pea 
Patch island to the United States, which deed shall be held as an 
escrow until the said arbitrator has made his award under this 
agreement; and if the said award is in favor of the title of the 
United States, and against the said James Humphrey, claiming 
under the said Henry Gale, deceased, then the said deed shall be¬ 
come absolute, and have the same effect as if it had been originally 
delivered as an absolute deed, and not as an escrow. And it is 
furthermore mutually agreed between the parties that, in case the 
award of the said arbitrator is adverse to the United States, and in 
favor of the said James Humphrey, claiming under the said Henry 
Gale, deceased, then the Secretary of War shall select, or cause to 
be selected, two citizens of the State of Pennsylvania, and the 
said claimant shall also select two citizens of the same State, 
and the four citizens so selected shall choose a fifth citizen of the 

same State, and the said five citizens so selected shall constitute a 

/ 

board of appraisers, and the said board, or a majority of them, 
shall have full power and authority to ascertain and determine the 
value of the Pea Patch island, and the sum to be paid by the UnU 
ted States to the said claimant under the said Henry Gale, de¬ 
ceased. The appraisers, before making any valuation, shall be 
sworn or affirmed faithfully and impartially to discharge their duty; 


6 


[ 21 ] 

and the following rales shall govern them in ascertaining the value 
of the said island, and the sum to be paid to the said James Hum¬ 
phrey for the title of the said Henry Gale, deceased. They shall 
ascertain and determine the value of the said island, considered as 
private property, as it was at the time the United States took pos¬ 
session of the same. They shall calculate and allow, at the rate 
of 6 per cent, per annum, interest on the value so ascertained, from 
the time the United States took possession of the island to the 
date of his award, making rests at the end of each period of six years, 
and adding the interest for six years to the principal, so as to con¬ 
vert interest into principal at the end of each six years; and they 
shall allow such damages as they-deem just and reasonable to the 
claimant, by reason of any expenses actually incurred by him, or 
those under whom he claims in the prosecution of the said claim. 

Lastly, in making their estimate of value, the said appraisers 
shall not take into count any improvements or expenditures made 
on the said island by the United States. The determination of the 
said appraisers, or a majority of them agreeing, shall be in writing, 
and shall be binding upon the United States and upon the claimant 
as to the value of the said island and the sum to be paid to the 
said claimant for the title of the said Henry Gale, deceased, to the 
said island, now vested in him. The Secretary of War further 
agrees, in the event of the title being decided adversely to the 
United States, and in favor of said claimant, to ask of Congress, at 
the session thereof next ensuing, the appraisement by the board of 
appraisers hereby constituted, an appropriation for the payment of 
the sum ascertained by the appraisement; and, upon payment of 
the said sum, the said deed, by the said claimant to the United 
States, delivered as an escrow as hereinbefore provided, shall be¬ 
come absolute, and have the same force and effect as if originally 
delivered as an absolute deed; provided, nevertheless, that it shall, 
before payment of the sum ascertained by the said appraisement or v 
any part thereof, be made to appear, to the satisfaction of the 
Attorney General of the United States, that the title of the said 
Henry Gale, deceased, to the Pea Patch island is, by the said deed, 
vested in the United States, free from all incumbrances; and that 
any further assurances or conveyances necessary and proper, in the 
opinion of the attorney general, for conveying the title of the said 
Henry Gale, deceased, to the United States, free from all incum¬ 
brances, shall be executed, by the proper parties, before the pay¬ 
ment of the said sum ascertained by the said appraisement or any 
part thereof. And it is further agreed between the parties, that 
the said board of appraisers shall have authority to examine wit¬ 
nesses on oath or affirmation, for the purpose of ascertaining the 
value of the said island. The Secretary of War further agrees to 
ask from Congress, at its present session, a contingent appropria¬ 
tion of thirty thousand dollars, to be applied, subject to the pro¬ 
visions of this agreement, to the extent it may be requisite to the 
payment of the sum ascertained by the said appraisement to be 
made as hereinbefore provided, in case the decision of the question 


7 


[ 21 ] 

of title by the arbitrator is adverse to the United States, and in 
favor of the said claimant under the said Henry Gale, deceased. 

W. L. MARCY, [seal.] 
Secretary of War. 
JAMES HUMPHREY- [seal.) 
Executed in presence of R. H. Gillet, 

Witness as to W. L. Marcy, secretary- and 
C. M. Edson, as to signature of J. Humphrey. 


* 

By direction of the President, and agreeably to an act of Con¬ 
gress, approved the 8th of August, 1846, section 2, you are hereby 
appointed to arbitrate and adjust the title to the Pea Patch island, 
in the Delaware river. 

r j Given under my hand and the seal of the War Depart- 
[seal. j m ent, this 29th day of September, 1847. 

W. L. MARCY, 
Secretary of War. 

To John Sergeant, Esq. 

These papers being read aloud: On motion of the counsel of 
the United States, it was ordered by the arbitrator that a commis¬ 
sion be issued to James C. Mansfield, of Newcastle, in the State of 
Delaware, to take the depositions of witnesses on behalf of the 
United States on interrogatories filed in ex parte, on fifteen days 5 
notice to the claimant or to John H. Eaton, his solicitor; and that 
the secretary of reference make out the commission. 

Interrogatories were filed in the above order, and are annexed in 
copy. See exhibit No. 1. 

Adjourned until Thursday, October 28, 1847, at 10 o’clock, a., 
m., at this same place, viz: district court room No. 1, southeast 
corner Sixth and Chesnut streets. 


October 28, A. D. 1847. 

Met pursuant to adjournment, at 10 o’clock, a. m., at the dis¬ 
trict court room No. 1, southeast corner of Sixth and Chesnut 
streets. Present: The arbitrator, the clerk, the Hon. J. M. Clay¬ 
ton and the Hon. J. A. Bayard, representing the United States, 
and the Hon. George M. Bibb and the Hon. John H. Eaton, rep¬ 
resenting James Humphrey. The district court being about to 
occupy the room, the arbitrator adjourned to the supreme court 
room, (nisi prius branch,) and took his place upon the bench. He 
stated that since his acceptance of the post of arbitrator, he had 
received several letters from counsel on both sides, inquiring, pro¬ 
posing, and suggesting various things, which letters it was not 
strictly formal or proper to address to him, though that course was 
naturally enough adopted prior to organizing; that he deemed it 


/ 




8 


[ 21 ] 

well to have all these letters now openly read, so that if either 
party had any objection to make to them, or to his answers to them, 
or to anything in either, such objection might be made now in the 
outset of the case, and heard and settled before entering into the 
merits of the case. The counsel on both sides approved that 
course, and thereupon the clerk read aloud the following letters: 

John H. Eaton to Hon. John Sergeant, Washington, August 26, 
1847. 

John Sergeant to General Eaton, Schooley’s Mountain, August 
' 30, 1847. 

John Sergeant to R. H. Gillett, esq., Solicitor of the Treasury 
of the United States, same date; enclosing copy last. 

John M. Clayton to Hon. John Sergeant, Newcastle, Delaware, 

August 28, 1847. * ^ ,, 

John Sergeant to Hon. J. M. Clayton, Schooley’s Mountain, Sep¬ 
tember 2, 1847. 

John M. Clayton to Hon. John Sergeant, Newcastle, Delaware, 
September 8, 1847. 

John Sergeant to Hon. J. M. Clayton, Philadelphia, September 
23, 1847. 

R. H. Gillet, Solicitor of the Treasury of the United States, to 
James Humphrey, Washington, D. C., September 29, 1847. 

R. H. Gillet, Solicitor of the Treasury of the United States, 
to John H. Eaton, Washington, D. C., September 29, 1847. 

R. H. Gillet, Solicitor of the Treasury of the United States, 
to John M. Clayton, office Solicitor Treasury, September 29, 1847. 

J. M. Clayton to John Sergeant, Newcastle, October 5, 1847. 

John Sergeant to Hon. John M. Clayton, Philadelphia, October 
7, 1847. 

J. H. Eaton and G. M. Bibb to Hon. John Sergeant, Washing¬ 
ton, October 5, 1847. 

John Sergeant to General Eaton and Governor Bibb, Philadel¬ 
phia, October 6, 1847. 

John Sergeant to Hon. J. M. Clayton, Philadelphia, October 6, 
1847; enclosing copy of preceding. 

J. M. Clayton to Hon. John Sergeant, Newcastle, October 10, 
1847. 

The letters having been all read, in full, all the counsel agreed 
that no objection could be taken to anything in any of them; the 
arbitrator said he was now ready to proceed with the case. It was 
agreed that the United States should begin, not waiving thereby 
any right to which they might be entitled by being in possession, 
or by being in the position of defendants in an action of eject¬ 
ment, but merely to regulate proceedings. They then offered in 
evidence. 

1. An original deed , as it was said, from Charles II., king of 
England, to James, duke of York, his heirs and assigns, dated 
“the two and twentieth day of March, in the five and thirtieth 
year of our reign;’* said by the V. S. to be 1682-’83; in these 
words: 


\ 


Charles the Second, by the grace of God, &c., to whom these 
presents shall come, greeting: Know ye, that w r ee, for divers good 
causes and considerations us thereunto moving, of our especial 
grace, certain knowlege, and mere motion, have given and granted, 
and by these presents, for us, our heirs and successors, doe give and 
grant unto our dearest brother, James, duke of York, his heirs and 
assigns, all that the town of Newcastle, otherwise called Delaware, 
and fort therein, or thereunto belonging, situate, lying, and being 
between Maryland and New Jersey , in America; and all that tract 
of land lying within the compasse of a circle of twelve miles aboute 
the said towne , situate , lyings and being upon the river Delaware , 
and all islands in the said river Delaware; and the said rivere and 
soyle thereof lyeing north of southernmost parte of said circle of 
twelve miles about the said towne; and all that tract of land upon 
the Delaware river and bay, beginning twelve miles south from the 
said towne of Newcastle, otherwise called Delaware, and extend¬ 
ing south to Cape Lopen. Together with ail the lands, islands, 
soyle, rivers, harbors, mines, minerals, quarrys, w'oods, marshes, 
waters, lakes, fishings, hawkings, huntings and fowlings, and all 
other royalties, privileges, profits, commodities and hereditaments 
to the said towne, fort, tracts of land, islands and premises, or to 
any or either of them belonging or appertaining, with their and 
every of their appurtenances, scituate, lying, and being in America; 
and all our estate , rights title , interest , benefit , advantage , claim, 
and demand whatsoever, of, in, or to the said towne, fort, lands, 
premises , and of every part and parcel thereof. To have and to 
hold the said town of Newcastle, otherwise called Delaware, and 
fort; and all and singular the said lands and premises , with their 
and every of their appurtenances hereby given or granted, or here¬ 
inbefore mentioned, to be given unto our said dearest brother, 
James, duke of York, his heirs and assigns forever. 

The deed continues fixing the rent “at foure beaver skins” yearly, 
when the same shall be demanded, or 90 days after. The premises 
are to be holden “as of our manor of East Greenwich, in our county 
of Kent;” powers of government are conferred by it; and, finally, 
the letters patent are declared to be good and effectual in law, not¬ 
withstanding the not well, or true reciting, or mentioning, of the 
premises, or any part thereof, or the limits or bounds thereof, or of 
any former or other letters patent or grants whatsoever, made or 
granted, of the premises, or of any part thereof, by us, or any of 
our progenitors, unto any person whatsoever. 

II. An exemplification of this patent, or deed, under the great 
seal of England; said exemplification dated 16th July, sixth year 
of Queen Victoria. 

III. A printed copy of the same paper, said to be in the votes 

and proceedings of the House of Representatives of the province of 
Pennsylvania, Philadelphia: Franklin & Hall, 1754: folio, vol. iii, 
p. 590. This book was not produced, but the counsel has leave to 
bring it in afterwards. (See page .) 

IV. A sworn copy, under the seal of the office of the mayoralty 
of the city of London, dated February 4, A. D. 1735, certifying 


10 


[ 21 ] 

that John Page, of Austin Fryers, London, gent., u a person well 
known, and worthy of credit,” had compared the paper annexed, 
purporting, &c., and found it to be a true copy of the same letters 
patent which, “many years ago, came into the custody of this de¬ 
ponent among other grants and deeds of Wm. Penn, esq., deceased, 
late proprietary governor,” &c. &c. 

The United States then read in evidence the title from the 
, duke of York to William Penn, as follows : 

Lease. 

An original deed signed and sealed, but not witnessed , from the 
duke of York, dated August 21st, in the 34th year of Charles the 
II., to Wm. Penn. Consideration, his father’s services and 10 
shillings. It demises, grants, bargains, and sells unto the said 
William Penn, all that the town of Newcastle, otherwise called, 
&c.; and all that tract of land lying within the compass or circle 
of 12 miles about the same , situate , lying , and being upon the river 
Delaware in America , and all islands in the said river Delaware , 
and the said river and soil thereof , lying north of the southernmost 
part of the said circle of 12 miles , #c., together with all rents, 
services, royalties, franchises, duties, &c., and all the estate , in¬ 
terests f, and powers whatsoever of his said royal highness in or to 
the same, to have and to hold all the same granted, or intended to 
be granted, town , circle , islands , to William Penn, his executors, 
administrators, and assigns for 10,000 years, from the day before 
the date, without imp. of waste. Yielding rent 5 shillings lawful 
money at feast of St. Michael, which Penn, for himself, his exe¬ 
cutors, administrators, and assigns, covenants he, his heirs, execu¬ 
tors, administrators, or assigns, will pay. 

Lease. 

. • ' t 

An original deed, sealed and delivered in the presence of wit¬ 
nesses , from the duke of York to William Penn, dated August 
24th, in the 34th year of the reign of Charles II., 1682. Considera¬ 
tion, the regard which the duke had for the memory of Wm. 
Penn’s father, also the sum of 10 shillings, conveys all that town 
of Newcastle , and all that tract of land lying within the compass 
or circle of 12 miles about the same , situate , lyings and being upon 
the river Delaware , and all isla?ids in the same river , and the said 
river and soyle thereof , lying north of the southernmost part 
of the said circle of 12 miles about the said town; to have and to 
hold to the said William Penn, his executors , and administrators , 
and assigns for 10,000 years, at a yearly rent of 5 shillings. 

Lease. 

An original deed, sealed and delivered in the presence of wit¬ 
nesses, from the duke of York to William Penn, dated August 


11 


[ 21 ] 

24th, in the 34th year of the reign of Charles II., 1682. Considera¬ 
tion, the regard which the duke had for the memory of Wm. Penn’s 
father; also sum of 10 shillings; bargains, sells, lets, and to farm 
lets, all that tract of land upon Delaware river and bay, beginning 
twelve miles south from the town of Newcastle, and extending 
south to the Horerkilns, otherwise called Lopen, together with free 
and undisturbed use and passage into and out of all harbors , 
bays, waters , rivers, isles, and inlets , belonging to, or leading to 
the same , together with the soils , fields, woods, underwoods, 
mountains, and hills, fennes, isles, lakes, rivers, rivulets, bays, and 
inlets, situate in, or belonging unto, the limits and bounds aforesaid, 
a// the rights of the duke to the same, to have and to hold 
for the space of 10.000 years; rent one rose, at each feast of 
St. Michael, the Arch angell. Wm. Penn covenants that he will 
erect offices of registry, &c., within one year, and is to yield one- 
half the profits of the offices to the duke, who has a right of distress 
if his rents are not paid within 20 days after the time when they 
are payable. 

Deed of feoffment. 

An original deed, sealed and delivered in the presence of wit¬ 
nesses, from the duke of York to William Penn, dated August 
(No. I) 24th, in the thirty-fourth year of the reign of Charles II., 
1682. Consideration the services of Wm. Penn’s father, and 10 
shillings, for which he bargains, sells, enfeoffs, and confirms unto 
Wm. P enn, his heirs, and assigns, forever, all that the town of New 
Castle, otherwise called Delaware, and all that, tract of land lying 
within the compass or circle of twelve miles about the same, situate , 
lying, and being upon the river Delaware; and all islands in the 
said river Delaware, and the said river and soil thereof , lying north 
of the southernmost part of the said circle of twelve miles about 
said town, and all the rights, titles, interests , powers, and property , 
claim, or demand of the duke, in or to the same; to have and to 
hold the same to William Penn, his heirs : and asssigns forever, 
subject to a rent of five shillings lawful money. The duke then 
covenants and grants to and with William Penn, his heirs, and as¬ 
signs, that he will any time thereafter, within seven years next en¬ 
suing the date of the deed, upon request, and at the cost and charges 
of Wm. Penn, his heirs, and assigns, make and execute, or cause to 
be made and executed, all and every such further act and acts, con¬ 
veyances and assurances in the law whatsoever, for the further co?i - 
veying and assuring the said town, and circle of twelve miles of 
land about the same, and islands, and all other the premises, with the 
appurtenances , as by counsel of the said William Penn, learned in the 
law, shall be reasonably devised, advised, or required. The deed 
then constitutes John Moll , esq., and Ephraim Herman, gentlemen, 
jointly, and cither of them, severally , attorneys in behalf of the 
duke, and for him to enter into and take possession and seizen of 
the premises conveyed, and, after such possession had and taken, to 
deliver possession and seizen to William Penn, his heirs, and as¬ 
signs, or his or their attorney's ratifying and approving, &c. 


12 


[ 21 ] 

Benjamin David, of the city of Philadelphia, residing Delaware 
Fouth street, in the said city, above Spruce street, having been 
sworn by the mayor of the city of Philadelphia, deposed and said 
as follows: I became in custody of these four deeds (the deeds 
above, marked with the letters J. R. Coates) as agent of Jacob G. 
Morris, who was the son-in-law of J. R. Coates, deceased. Mr. 
Coates received them as agent or attorney of the Penn estates, 
during a visit to England, from some of the members of the Penn 
family. I speak of the deed from King Charles to the duke of 
York. I cannot speak of the others. I suppose they came to Mr. 
Coates’s possession in the same way. Mr. Coates came from Eng¬ 
land 10 or 15 years ago. I understood, it was generally under¬ 
stood, that Mr. Coates was the agent of the Penns for managing 
their estates in America. I am the brother-in-law of Mr. Morris. 
It is so long ago since I heard Mr. Coates narrate how he came pos¬ 
sessed of these deeds, that I cannot speak with absolute confidence 
of what was done. I think he told me that, being at Stoke Pogies, 
Mr. Penn asked him if he would like to go into the charter room, 
where he might find some papers that would be interesting to him 
as an American; that he was welcome to any of them he wanted. 
Mr. Coates found in the charter room these deeds, as I suppose, 
and also the charter of the State of Pennsylvania. 

Cross examined. 

\ ' .1 L % 

I am not able to say that Mr. Coates continued to be agent of 
the Penn estates till the time of his death. I never understood 
that there was any revocation of his authority. He was living 
within seven years. Mr. Morris is now in Europe. The box was 
first opened by me this morning. 

This evidence having been read over to the witness, was said, by 
him, to be correctly taken down; The arbitrator directs that all 
the testimony be read over to the witnesses, when taken, and be 
verified. 

An exemplification, to which is attached a certificate, (No. 2,) 
under the seal of the office of the mayoralty of the city of London, 
dated in London, June 16, in the ninth year of George II., and A. 
D. 1735, which certificate states that at a court of the king’s ma¬ 
jesty, hoiden before the lord mayor and aldermen of the city of 
London, John Page, of Austin Friars, gentleman, appeared, aged 
50 years and upwards, being a person well known and worthy of 
good credit, and on oath, &c., did declare, Ac., that he had exam¬ 
ined the paper copy, annexed, purporting, &c., and of the endorse¬ 
ment on such indenture, with the original indenture of bargain and 
sale, whereof it purported to be a copy, and that the annexed is a 
true copy of the said indenture, and of all the endorsements 
thereon, and which indenture appears to be, and the deponent be¬ 
lieves is, under the hand and seal of the late King James, while 
duke of York, and to be by him executed. 

It is dated the 24-th August, in the thirty-fourth year of Charles 


13 


[ 21 3 

II*) A. D. 1682. Consideration, the services of William Pen n’s 
father and 10 shillings; bargains, sells, enfeofFs and confirms to Wil¬ 
liam Penn,his heirs and assigns forever, all thattract of land upo n the 
Delaware river and bay, beginning twelve miles south from New¬ 
castle, and extending south to Capin Lopin, together with free and 
undisturbed use and passage into and out of all harbors, bays wa¬ 
ters, rivers, isles and inlets belonging to or leading to tf L e same * 
together with the soil, fields, W'oods, under-woods, mountai ns, hills, 
fennes, isles, lakes, rivers, rivulets , bays and inlets , situate in or be¬ 
longing unto the limits and bounds ajoresaid , together wi th all sorts 
of minerals, and all the estate, interest , royalties, franchises 
powers, privileges and immunities whatsoever, of the d.uke therein, 
or in or unto any part thereof , reserving a right of w ay. To have 
and to hold to William Penn, his heirs and assigns, to his and their 
use forever. To be holden of ye duke and his hebrs, as of their 
castle of New York, in free and common socage. Rent, one rose 
annually, at the feast of St. Michael’s. Penn covenants that he , his 
hens or assigns, will , within one year, set up onf^ or more offices of 
registry for setting down and registering all it tanner of rents and 
oyer profits, and pay the duke half of them; a’nd if the payment is 
behind twenty days, the duke, his heirs and a ssigns may enter upon 
and distrain. The duke for himself, his h'eirs and assigns, cove¬ 
nants and grants to and with William Penr,, his heirs and assigns, 
that the duke, his heirs and assigns, will ? t t anytime hereafter, du¬ 
ring the space of seven years next ensuing ye date of the deed, ex¬ 
ecute such further assurance, &c., as ye co unsel of Penn, his heirs and 
assigns may advise, &c Power of attorney to John Moll and 
Ephraim Herman , by ye duke, to enter upon all ye premises hereby 
granted or mentioned , and intended tfj be, or upon any part for the 
whole, and to take and receive possession and seizen therevj, and 
the same afterwards to deliver to, William Penn, his heirs and 
assigns , or to his or their attorn ey, ratifying, &c. The endorse¬ 
ment is: “Entered in the office of records for the province of New 
York, in liber E, folio 38, the 2Tst of November, 1682. 

“T. JOHN WEST, Sen.” 

This deed is witnessed by J 0 . Werden, Geo. Mann. 

An exemplification, under the great seal of the province of New 
York, dated 29th November, 1726, of three, records (No. Ill) in 
the secretary’s office of o ur province of New York, in a book of 
patents and commissions, &c. 

1. A deed from the d*jke of York to William Penn, in fee. This 
appears to be a copy o f the deed already produced in original, and 
marked by me as No. I, being a deed for the town of Newcastle^ 
the 12 miles circle ab out the town, upon the Delaware and all islands 
in the said river, and the said river and soil thereof lying no?th of 
the southernmost part of the said, circle, &c. 

2. A deed ht ; v ; en the same parties in lee. This appears to be 
a copy of a • eu ;,f which no original was produced, but of which 
tuere was an oxeiyiplificaViOn under the seal of the city of London, 


14 


[ 21 ] 

marked as No. II. It is for that part of Delaware State which is 
south of the south part of the circle. 

3. A paper, or record, certified to be found in a book entitled 
Miscellaneous Entries, begun in the year 1682, and ending in the 
year 1683. The record of the commander and council, declaration 
on Esquire Penn's grant for Newcastle , Saint Jones , and Whore- 
kills, fyc. By the commander and chief in council. Whereas, his 
royal highness hath been graciously pleased, by indenture, under his 
hand and seal, bearing date the 24 th day of August last past, for 
the consideration therein mentioned, to bargain, sell enfeoff, and 
confirm, unto William Penn, esquire , Ais Aefrs and assigns forever , 
a// ojf Newcastle, otherwise called Delaware , and all 

that tract of land lying within the compass or circle of 12 miles 
about the same , t/nfA a// islands and the river and soil thereof ', lying 
north of the southernmost part of the said circle, and all the rents, 
services, royalties , franchises, duties, jurisdictions, and liberties 
thereunto belonging; and, by another indenture, of the same date, 
for the consideratiow therein likewise mentioned, hath also bar¬ 
gained, sold, enfeoffed, and confirmed, unto the said William Penn, 
esquire, his heirs and assigns forever, all that tract of land upon 
the Delaware river and bay, beginning 12 miles south from the 
town of Newcastle, otherwise called Delaware, and extending 
south to the Whorekills, otherwise called Cape Hen Lopen, with 
all isles, rivers, rivulets, bays, and inlets, royalties, franchises, 
powers, privileges, and immunities, whatsoever, and in and by the 
said indentures, appointed and authorized John Moll, esquire, and 
Ephraim Harman, gentleman, to deliver to the said William Penn, 
free and actual possession of the premises, as by the said indentures 
here produced and showJi. to us, and by us well approved of and 
entered in tJoe public records of the province, doth and may more at 
large appear, and we being thereby fully satisfied of said William 
Penn's right to the possession and enjoyment of the premises, have, 
therefore , thought fit and necessary to signify and declare the same 
to you to prevent any doubt or trouble that might arise or accrue, 
and to give you your thanks for your good services done in your 
several offices and stations during the time you remained under his 
royal highness’s government. Expecting no further account than 
that you readily submit and yield all due obedience and corformity 
to the powers granted to the said William Penn in and by the said 
indentures , in the performance of which, we wish you all happi¬ 
ness. Dated in New York , the 21st day of November, one thousand 
six hundred and eighty-two. To the several justices of the peace , 
magistrates, and other officers, at Newcastle, Saint Jones's. Deale 
als. Whorekill, at Delaware, or within any of the bounds and limits 
above mentioned." 

An ancient paper, certified by Tench Coxe, secretary of Penn¬ 
sylvania land office, to have been on C( file therein on the 7th day 
of January, 1800,” and upon the day of the date c*f the certificate, 
24th August, 1801, to have been delivered, under an act of the as¬ 
sembly of Pennsylvania, to the agent of the State of Delaware. 

This paper purports to be u copies of several matters of record 


15 


[ 21 ] 

relating to Delaware.” It is in English, and purports to be cer¬ 
tified by W. Burnet, captain general and governor-in-chief of the 
provinces of New York, New Jersey, and territories depending in 
America, vice admiral, &c., to be a sworn copy, and as to part 
sworn, translation of original records remaining in the office of the 
secretary of the province of New York. The paper professes to 
be under the great seal of the province of New York , and is given 
at Fort George , in New York , this 29 th day of November , and in 
the 13 th year of his Majesty's reign. There is no seal of any sort 
to the paper. It contains copies of letters, u actes de notoriete,” 
&c.; correspondence of British admiral and Stuyvesant; history 
of settlement of Delaware by Swedes and Dutch about 1629. This 
paper was offered to prove s veral historical matters; but particu¬ 
larly as containing evidence of a grant from the Indians of the 
territory claimed in the suit. The deed reads thus: 

C( We, director and council of New Netherland, residing on the 
Island Manhattans and Fort Amsterdam, under the government of 
their high and mightinesses, the lords states general of United 
Netherlands and the incorporated West India Company at the 
chamber of Amsterdam, testify and declare by these presents: 

u That on the day of the date here under written, before us in 
their own persons came and appeared Quisquak Offs, Ecgonques, 
Sironcherson, inhabitants of their town, situate on the south cor¬ 
ner of the bay of the south river, and declared voluntarily and pre¬ 
meditately, and by the especial direction of the rulers, with the 
consent of the common people thereof, that they had since the 1st 
day of the month of June, in the year 1629, now last past, for and 
by reason of certain parcel of merchandises which they acknow¬ 
ledged, before the passing of these presents to their good liking 
and satisfaction, to have received in their power and hands, and 
delivered to them in a just, true, and free property; to have 
transported, released, given over, and assigned, as they do by these 
presents transport, release, give over, and assign, for and to the 
behoof of the Honorable Mr. Samuel Godijs, now absent, on whose 
words we, on due stipulation, do accept thereof, to wit: The lands 
to them belonging, situate nigh the south river on the south side 
of the aforesaid bay, called by us the bay of the south river, 
stretching in length from Cape Hinloop to the mouth of said south 
river, about eight large miles, and up into the country in the 
breadth of half a mile, stretching to a certain low place or 
meadow, by which said meadow these limits may be evidently enough 
distinguished; and that with all the action, rights, and jurisdiction 
to them in their aforesaid quality belonging, constituting and sur¬ 
rogating the before mentioned Honorable Mr. Godijs in their 
stead, estate, real and actual possession of the same, and also giv¬ 
ing him full and irrevocable power and authority and especial di¬ 
rection, tan quam actor et procurator in rem suam ac proprium ) 
to the said Honorable Mr. Godijs, or whom hereafter might obtain 
his action to enter on, hold, possess, dwell upon, use, and detain 
the above mentioned land; also therewith and thereof to transact 


16 


[ 21 ] 

and dispose thereof as his honor, with his own will and by lawful 
title acquired lands, may do; without that, they, the releasors 
thereunto any part, right, action, or superiority, any more in the last 
thereunto have reserve or keep, be it of property, command, or 
jurisdiction. But to the behoof aforesaid of all the same, from 
henceforth and forever, desisting, releasing, disclaiming, and re¬ 
nouncing, and by these presents further promising not only this 
their transport, and what by virtue thereof may be done from 
henceforth and forever to hold, follow and accomplish, firm, valid, 
infrangible and irrevocable, but also the same of lands to warrant 
and defend against every one, free of all demands, trouble, and 
incumbrances, to be made thereon by any body, all on good faith, 
without fraud or deceit. In witness whereof, we have confirmed 
these presents with our usual signa and our seal hereunto append¬ 
ing, done on the Island Manhattans, the 15th of July, 1630.” 

The foregoing paper appears to come from a u Book of Dutch 
patents, N. A., folio 3. 55 

The document offered in evidence by Mr. Clayton proceeded fur¬ 
ther as follows: 

u In a book of Dutch records, begun the 8th April, 1638, the in' 
strument which follows has no date to it. But what goes just be' 
fore is dated the 6th May, 1638, and what follows is dated 17th of 
May, 1638. 

U I, William Keep, director general of New Netherland under 
the government of their high and mightinesses the lords states 
general of the United Netherlands, and the incorporated West In¬ 
dia Company at the chamber of Amsterdam, make known to you, 
Peter Minmict, as he causes himself to be called, commander in the 
service of his royal Majesty of Sweden, that the whole south river 
of New Netherland has been many years in our possession, and 
above and below settled by our forts, and also sealed with our 
blood, which has happened even during your direction in New 
Netherland, and well known to you. Now because you came be¬ 
tween our forts and begins to build a fort there to our damage and 
prejudice, which, nevertheless, will be never suffered by us, and 
that we are also well assured that her royal Majesty of Sweden has 
given you no orders to build fortifications in our rivers or along 
our coasts, wherefore we, in case you proceed in the building of 
fortifications, or attempt anything to our prejudice, do by these 
presents protest for all charges, damages and interests, as also of 
all miseries, bloodsheds, trouble and damages, which thereby in 
times to come may happen to the company, and that we will main¬ 
tain our right in such a manner as we shall find most suitable thus 
done. 55 

James A. Bayard, Esq., states, and he says he is willing to 
swear, that the three papers, Nos. II., III. and IIII., were found 
among the professional papers of his late father, James A . Bay ard, 
Esq., deceased, of the State of Delaware. 

Mr. Clayton puts in evidence, “ Laws of the government of New- 


17 


[ 21 ] 

castle, Kent and Sussex upon Delaware, published by order of the 
assembly,” by Franklin & Hall, Philadelphia, 1752; a folio of 363 
pp., and commonly called lower county laws. 

He cited p. 3: the duke of York’s deed of feoffment of New¬ 
castle and 12 miles circle to William Penn, 1682, August 24. Same 
as deed No. I. 

P. 5: the duke of York’s deed of feoffment of a tract of land 12 
miles south from Newcastle to the Whorekills, to William Penn, 
1682, August 24. Same as No. II. 

P. 8: the charter of privileges granted by William Penn, Esq., 
to the inhabitants of Pennsylvania and territories, dated October 
28, 1701. 

Also puts in evidence, u Laws of the State of Delaware from the 
14th of October, 1700, to the 18th day of August, 1797; in two 
volumes. Published by authority; Newcastle, Samuel and John 
Adams, 1797. 

He cited volume 1, appendix 1: u The duke of York’s deed of 
feoffment to William Penn,” August 24, 1682. (No. I.) 

Yol. 1, appendix 4: The duke of York’s deed of feoffment of a 
tract of land 12 miles south from Newcastle to the Whorekills, to 
William Penn, August 24, 1682. (No. II.) 

Vol. 1, appendix 8. An act of union for annexing and uniting 
of the counties of Newcastle, Jones and Whorekills, alias New- 
dale, to the province of Pennsylvania, and of naturalization of all 
foreigners in the said province and counties annexed. 

This act, dated at Chester, December 7, 1682, and under the 
hand and broad seal of William Penn, proprietary and governor of 
this province, recites : that it had pleased the duke of York to 
grant unto William Penn in fee “ all that tract of land from 12 
miles northward of Newcastle, on the river Delaware, down to the 
south cape, commonly called Cape Henlope,and by the proprietary 
and governor now called Cape James, lyng on the west side of 
said river and bay, formerly possessed by the Dutch, and bought 
by them of the natives, and first surrendered upon articles of peace 
to the king’s lieutenant governor, Colonel Nicholls, and a second 
time to Sir Edmond Androse, lieutenant governor to the said duke; 
and hath been by him quietly possessed and enjoyed, as also the said 
river Delaware , and soil thereof and all islands therein^ lately cast 
into three counties, called Newcastle, Jones’s and Whorekills, alias 
Newdale,” together with the royalties, &c., &c.; as by two deeds 
of feoffment bearing date August 24, 1682, doth more at large ap¬ 
pear. 

Same book, vol. 1, appendix, page 30, “An act for the effectual 
establishment and confirmation of the freeholders of the province 
and territories, their heirs and assigns, in their lands and teneme- 
ments;” which is dated A. D. 1700; and after reciting that, at the 
first laying out and settling of lands in Pennsylvania and territories 
thereunto belonging, neglects and errorshad been committed through 
the want of experience and care in the officers, to the wrong of 
the proprietary and the insecurity of your people. For remedy 
thereof, and for the safety of the said province and territories in 
2 


18 


[ 21 ] 

general, and that the people may be completely and absolutely set¬ 
tled and fully secuied in their rights and titles to land and all oc¬ 
casions of difference and contest thereupon may forever hereafter 
be prevented and removed;’’ enacts that all tracts and parcels of 
land taken up within this province and territories, and duly sealed 
by virtue of letters patent, or warrants obtained from governors or 
lawful commissioners under the crown of England, before the 
king’s grant to the proprietary and governor for this province, (ex¬ 
cept the same was had by fraud or deceit,) shall be quietly enjoyed 
by the actual possessors, their heirs and assigns; and that land 
and tracts of land, duly taken* up by virtue of warrants obtained 
pursuant to purchases made and had from the proprietary and gov¬ 
ernor, or in pursuance of any commission or power granted by the 
proprietary to any other person, (except as before excepted, and 
except where the same does interfere with other persons’ just rights 
and claims,) shall be quietly and peaceably enjoyed by, and confirm¬ 
ed to, the possessor, (according to the said warrants,) his heirs and 
assigns forever; and although no patent hath been granted, yet if 
peaceable entry and possession hath been obtained by warrants or 
otherwise, as aforesaid, and thereupon quiet pessession hath been 
held during the space of seven years, or more, such possession or 
such entry as aforesaid shall give an unquestionable title to all 
such lands, according to the quantity they were taken up for, and 
shall be deemed and held good, and be confirmed by the proprie¬ 
tary to the seators or possessors thereof forever.” 

Same book, appendix page 37. “ The charter of privileges grant¬ 
ed by William Penn, esq., to the inhabitants of Pennsylvania and 
territories. 

“Laws of the State of Delaware to the year of our Lord 1829, 
inclusive,” &c. Arranged and published under the authority of the 
General Assembly, Wilmington, Delaware—Porter & Son, 1829, 
page 73. “An act ceding to the United States of America the ju¬ 
risdiction which this State has over the Pea Patch, on certain con¬ 
ditions therein mentioned.” 

Sec. 1 . All the right , title , and claim , tohich this State has to 
the jurisdiction and soil of the island in the Delaware , commonly 
called the Pea Patch , be and the same is hereby ceded to the United 
States of America, for the purpose of erecting forts, batteries, and 
fortifications, for the protection of the river Delaware and the ad¬ 
jacent country, upon the condition , nevertheless , that the said forts, 
batteries, and fortifications, shall be erected and kept up at the ex¬ 
pense of the United States; and, also, that all process, civil and 
criminal, issuing under the authority of this State, may be exe¬ 
cuted and served within the place, the jurisdiction of which is here¬ 
by ceded as aforesaid in the same manner as if no such cession had 
been made. 

Passed May 27, 1813. 

Votes and proceedings of the House of Representatives of the 
Province of Pennsylvania, Philadelphia—Franklin & Hall, 1754, 
vol. 3d, page 590. “ King Charles If., grant of the town of New- 


19 [ 21 ] 

castle and the three lower countries to the Duke of York,” 22d 
March, in 35, Car. II. 

“ Map of Delaware bay and river, founded upon trigonometrical 
survey, under the direction of F. R. Hasler and A. D. Bache, su¬ 
perintendents of the survey of the coast of the United States,” &c.; 
published in 1846—A. D. Bache Superintendent. This map has on 
it, in pen mark, a twelve miles circle 

It is admitted by counsel on both sides that the Pea Patch is but 
five miles from New Castle. 

A paper certified, under the seal of the circuit court of the United 
States for the Delaware district, to be a true copy of the record in 
the office of the clerk of that court in the suit of John Doe, lessee 
of the United States of America versus Richard Roe, casual ejector, 
John Corkwin, Lewis Grubb, John Pile, B. Cooper, James Colvin, 
Edward Powers, William Powell, N. Derrickson, William Long, 
and Isaac Jones, tenants in possession. 

The service on John Corkwin, Thomas Day, James Colvin and 
Thomas Briggs, Edward Powers, and Isaac Jones, May 20, 1839. 

May 29, 1839. Judgment by default against Richard Roe, casual 
ejector and defendant. 

May 24, 1843. Sciria facias. 

October 18, 1843. Judgement upon the sciria facias. 

November 21, 1843. Hab. facias posses. 

November 27, 1843. Possession delivered. 

(Adjourned till to-morrow at 11 o’clock, in the same place.) 


Friday , October 29, 1847. 

Met pursuant to adjournment. The same counsel present as be¬ 
fore. 

Mr. Clayton produces an ancient folio book, said to be the com¬ 
plainant’s paper book, in Penn versus Baltimore. 1 Yesey, 444. 

Produced to show generally the title of the United States, and 
particularly at page 5fi. That the very and original deed of the 
king to the duke of York, here produced by the United States, 
was an exhibit in that case, and was in possession of Mr. Penn . 
After exhibiting, from the chappel of the rolls, a copy “of these 
letters patent,” and noting the disbelief of Lord Baltimore, as ex¬ 
pressed in his answer, that the king did ever expressly grant these 
lower counties to the duke of York, which the paper book remarks, 
“it is plain from the above that they were.” And noting Lord 
Baltimore’s argument, that being made after the deed by the duke to 
Penn, this grant must have been for the duke’s use , and not for 
Penn’s , the paper book proceeds: “ We have a fact that will deter¬ 
mine that question, for we have thevery original charter itself , under 
the great seal, in our custody, ready io produce, which, if the duke 
had intended for himself , and to defeat our title by, he would have 
kept and not Mr. Penn, who was at this time of passing it, and for a 
considerable time longer over in America .” 

He cites “Opinions of eminent iawyers on various points of Eng- 


20 


[ 21 ] 

lish jurisprudence, chiefly concerning the co^nies, fisheries, and 
commerce of Great Britain, by George Chalmers, esq., F. R. S. 
and S. A., London, 1814,” p. 59, vol. 1. 

8. “ Of the king’s right to the islands in the river Delaware ,” by 
the attorney and solicitor general, Raymond and York, in 1721. 

To the right honorable , the lords commissioners of trade and 'plan¬ 
tations . 

May it please your Lordships: In obedience to your lordships 
commands, signified to us by Mr. Popple, by his letter of the 30th 
June last, whereby he transmitted to us the annexed copy of two 
clause, extracted out of the charters of New Jersey and Pennsyl¬ 
vania, whereby the boundary of these two provinces are ascertained, 
and thereupon desired an opinion whether the Delaware river, or 
any part thereof, or the islands therein lying, are, by the said 
clauses, conveyed to either of the said provinces, or whether the 
right thereunto doth still remain in the crown? We have perused 
the said clauses, and have been attended by the agents of the par¬ 
ties, who claim the province of Pennsylvania, and their counsel 
who laid before us a copy «f the letters patent granting the said 
province, and have heard what hath been alleged on both sides, and 
upon consideration of the whole matter, are of opinion that no part 
of Delaware river, or the islands lying therein, are comprised with¬ 
in the granting words of the said letters patent, or of the said an¬ 
nexed extracts of the grant of New Jersey; but we conceive that 
the right to the same still remains in the crown. 

ROBERT RAYMOND, 
PI1ILL. YORKE. 

August 5, 1721. 

Exemplification , under the seal of the office for recording of deeds , 

at Newcastle , in and for Newcastle county , Delaware , and dated 

August 27, 1847, of the following papers: 

1st. His royal highness’s grant to Wm. Penn, esq., of a tract of 
land, twelve miles south of Newcastle, to Whorekills; this appears 
to be the same deed as No. II, except that these words are added: 
“Entered the 21st of November, 1682, secretary’s office of the Pro¬ 
vince of New York. The above written is a true copy of the 
record remaining in the said office, comp’d and ex’d per William 
Sharpas, sec’y This deed, or copy of a deed, appears to have 
'been recorded in Delaware, the 16th March, 1724. 

2. “His royal highness’s grant to William Penn, esq., of New¬ 
castle and 12 mile circle.” 

This appears to be the same as No. 1, except that, these words 
are added: “Entered the 21st November, 1682, secretary’s office of 
the Province of New York, May 20th, 1700. The above is a true 
copy of the record remaining in the said office, examined per Will. 
Sharpas, recorded in the Roll’s office, at Philadelphia, Patent book 
A, No. II, pp. 118, 119, 120, the 28th March, 1701, by me, Tho. 
Story. 


21 [ 21 ] 

This deed, or a copy of a deed, appears to have been recorded 
in Delaware, the 16th March, 1724. 

3. The following document: 

We, underwritten, being inhabitants of the town of Newcastle, 
upon Delaware river, having heard the indenture read, made be¬ 
tween his royal highness, James, Duke of York and Albany, etc., 
and William Penn, esq., governor and proprietor of the province 
of Pennsylvania, &c., wherein the said duke transferreth his right 
and title to Newcastle, and 12 miles circle about the same, with 
all powers, and jurisdictions, and services thereunto belonging, 
unto the said William Penn, and having seen by the said duke’s 
appointed attorneys, John Moll and Ephraim Herman, both of 
Newcastle, possession given, and by our governor, William Penn, 
esq., possession taken, whereby we are made subjects, under the 
king, to the said William Penn, esq., we do hereby, in the presence 
of God, solemnly promise to yield to him all just obedience, and 
to live quietly and peaceably under his government. Witness our 
hands, this 28th day of October, Annoq. 1682. [Then follow sev¬ 
eral signatures.] Recorded at Philadelphia, 28th 8mo., 1701. 

4. The following document: 

Newcastle, the 28 th October , 1682. 

Memorandum that, the day and year first above written, William 
Penn, esq., by virtue of an instrument of indenture, signed and 
sealed by his royal highness, James, Duke of York, &c., did then 
and there demand possession and seizen of John Moll, esq., and 
Ephraim Herman, gentleman, (attorneys constituted by his royal 
highness,) of the town of Newcastle, otherwise called Delaware, 
with 12 miles circle and compass of the said town; that the pos¬ 
session and seizen was accordingly given by the said attorneys to 
the said William Pe*nn according to the usual form, by delivery of 
the fort of the said town, and leaving the said William Penn in 
quiet and peaceable possession thereof, and also by the delivery of 
turf and twig, and water and fowle of the river Delaware , and that 
the said William Penn remained in the peaceable possession of the 
premises, as witness our hands and seals the day above said, and 
when the words and water and soyle of the river Delaware were in¬ 
terlined before us. [Here follow several names.] 

5. The following document: 

A certificate, or declaration, signed by 12 persons, as “witness 
our hands in Delaware river,” this 7th day of November, 1682, and 
recorded at Philadelphia, 28th of 8th month, 1701. It recites and 
refers to the duke of York’s deed of August 24, 1682, as having 
authorized Moll & Herman to deliver possession to Penn, “of all 
that part of Delaware river and bay from twelve miles distance from 
the town of Newcastle, downwards, as far as Cape Henlopen,” 
which the duke had granted to Penn on conditions. It recites that 
Penn, by letter of attorney, dated 28th October, had appointed 
Captain Wm. Markham his attorney, to demand and receive of Moll 
& Herman, attorneys of the duke, “the delivery and possession of 
all the said tract of land upon Delaware river and bay, beginning 
12 miles south of Newcastle, and extending south to the Whore- 


22 


[21] l 

kills.” And then testifys and declares, that on the day of the date 
the signers had been present, and seen Moll & Herman give and 
deliver, in the duke’s behalf, actual possession to Captain Mark¬ 
ham, to Penn’s use, of the land, soyle, and premises in the said 
instrument of indenture mentioned, and according to the true in¬ 
tent of his R. H., mentioned in the same. A note states that the 
word soyle was interlined prior to signing. 

6. The following document, a certification from John Moll. — 
It states that Penn, on his first arrival from England, by New¬ 
castle, upon the Delaware river, October, 1682, sent a messenger 
ashore to give notice to the commissioners that he desired to speak 
to them aboard; that Moll, who had been left by Sir Edmond An¬ 
dros, governor general, under his royal highness, the first in com¬ 
mission, went aboard with some more of ye commissioners, when 
Penn showed them two indentures, or deeds of feoffment, from under 
the duke’s hand and seal, dated 28 th of August , 1682; one for the 
county of Newcastle , with 12 miles distance north and south there¬ 
unto belonging; and the other beginning 12 miles below Newcastle, 
and extending south unto Cape Henlopen, together with the mills 
and waters of the said river , bay, and rivulet, and the islands there¬ 
unto belonging and underneath ;” to which indentures were added , 
powers of attorney to him, Moll , and Herman , dec’d , fyc. fyc.; 
that Herman happened to be gone from home, and so was not 
aboard the ship with Moll; that he, Moll, desired from Penn 24 
hours’ consideration for to communicate with Herman and the rest 
of the comm’rs about the premises. In which compass of time, 
all unanimously agreed to comply with his royal highness’s orders. 
Whereupon, they u did give and surrender, in the name of his 
royal highness, unto him, the said William Penn, esquire, actual 
and peaceable possession of the fort of Newcastle, by giving him 
the key thereof to lock upon himself alone the door; which, being 
opened by him again, we did deliver also unto him one turf, with 
a twigg upon it, a porrenger with river water and soyle in part of 
all what was specified in the said indenture, fyc., fyc.; that, a few 
days after, they went to the house of Edmund Caulwell, at the 
south side of Appoquenenning creek, by computation above 12 
miles distance from the tow T n of Newcastle*, as being a part of the 
lower counties there above mentioned in his royal highness’s other 
deed. And, alter they had shown unto the comm’rs of these 
counties, the powers and orders given unto .us as aforesaid, we 
asked them—the certificate proceeds to state—whether they could 
show any cause why we should not do there as we had done at 
Newcastle. And, finding no manner of obstruction, the same man¬ 
ner and form of delivery was made there as had been made at New¬ 
castle, u which acting of us was fully accepted and well approved 
of by Anthony Brockhold , then commander-in-chief, and his council 
at New York, as appears by their declaration, bearing date the 21 st 
of November, 1682, from which jurisdiction we had our dependance 
all along ever since the conquest, until we had made the above related 
delivery unto Governor William Penn, by virtue of his royal high¬ 
ness’s orders and commands , fyc. 


JOHN MOLL. 


23 


[21] 

Mr. Clayton: The United States here close their paper title. 

Mr. Eaton offers Senate document, vol. III., l837-’38, document 
No. 140. Mr. Bayard objecting to the reception of the document 
by itself, Mr. Eaton offers a former contract of submission, which 
he argued was abrogated but in part by the submission in this case. 

This document contained a copy of Judge Baldwin’s opinion in 
a suit between the same parties, it was said, and some argument 
arose as to the effect of this former suit. Gov. Bibb argued on 
this subject, citing: 11 St. Trials, 261; 2 Bur., 666; 2 Doug., 421j 
note, 159 a 6 term, 609; 2 Bur., 658; Com. Dig. Ev. A, 5; Hard, 
472; Gilbert on Ev., 35, 36, 37; 1 Ld. Raymond, 730; Com. Dig. 
Rv., A, 5; 12 Ven. Ev. Eject. T, B, 35; S. Mod., 142. 

Mr. Arbitrator gave an opinion explaining his views, and sus¬ 
taining the conclusions of his mind on the subject; which was to 
reject the evidence. 

u The grants, concessions, and original constitutions of the prov¬ 
ince of New Jersey,” &c. By Aaron Learning and Jacob Spicer, 
Philadelphia; W. Bradford, printer to the king’s most excellent 
Maj esty, for the province of New Jersey. 

Page 3 and 4: Whereas King Charles II.,by patent, 12th March, 
1663-’64, for consideration therein mentioned, did give and grant 
unto his brother, the duke of York, in fee u all that part of the 
main land of New England beginning at a certain place called or 
known by the name of St. Croix, next adjoining to New Scotland 
in America, and from thence extending along the sea coast unto a 
certain place called Petuaguine or Pemaquid, and so up the river 
thereof to the farthest head of the same as it tendeth northward, 
and extending from thence^ &c., &c., &c.; all that island or islands, 
commonly known by the name or names of Matowacks or Long 
island, scituate, lying, and being towards the west of Cape Cod and 
the Narrow Higanse.tts, abutting upon the main land between the 
two rivers there called or known by the several names of Connecti¬ 
cut or Hudson river, together, also, with the said river, called Hud¬ 
son river , and all the lands from the west side of Connecticut to the 
east side of Delaware bay. And, also, all those several islands 
called or known by the names of Martin’s Vineyard and Nantuckes, 
or otherwise Nantucked; together with all the lands, islands, soiles 2 
rivers, harbours, mines, minerals, quarries, woods, marshes, lakes, 
fishings, hawkings, huntings, and fowling, and all other royalties , 
profits, commodities, and heredetaments to the said several islands , 
lands, and premises, belonging and apper taming, with their and 
every of their appurtenances; and all our estate, right, title, inter¬ 
est, benefit, advantage, claim, and demand of, in, or to the said l inds 
and premises, or any part or parcel thereof ; and the reversion and 
reversions, remainder and remainders, together with the yearly and 
other the rents, revenues, and profits of all and singular the said 
premises, and of every part and parcel thereof.” The patent also 
grants (p. 5) powers of government in extenso, u as w T ell in all 
causes and matters, capital and criminal, as civil, both marine and 
others subject to an appeal; to make and to execute or abrogate 
laws, i( not only within the precincts of the said territories or 


24 


[21] 

islands, but als » upon the season going and coming to and upon the 
same,” u for the good of the adventurers and inhabitants there; to 
admit persons to trade and trajique unto and within the said territo¬ 
ries and islands aforesaid; to expel by arms, as well by sea as by 
land , certain persons,” &c. The objects of the charter being, ob¬ 
viously, for colonization, plantations, and settlement. 

Same book, page 8, &c. Lease and release; the lease dated 
June 23, 1664, and the release dated June 24, 1664. The duke of 
York to John, Lord Berkely, and Sir Geo. Carteret. Recites the 
king’s grant to the duke, of March 12, 1663-1. And grants to 
Berkely and Carteret in fee, u all that tract c-f land adjacent to 
New England, and lying and being to the westward of Long island 
and Manhitas island, and bounded on the east by the main sea, and 
part by Hudson’s river, and hath upon the West Delaware bay or 
river , and extending southward to the main ocean, as far as the 
Cape May at the mouth of Delaware bay; and to the northward as 
far as the northernmost b r anch of the said bay or river of Dela¬ 
ware, &c.; and crosseth over thence in a straight line to Hudson’s 
river, &c.; and, also, all rivers, fyc., fishings, fyc., fowling and all 
other royalties , profits , commodities, and hereditaments , Sfc., with 
their, and every of their appurtenances , in as full and ample a man¬ 
ner as the duke himself held them. 

Same book, page 12. The concession and agreement of the lords, 
proprietors of the province of JYew Coesarea , fyc., saying that the 
register shall enter all grants of lands from the lords to the plant¬ 
ers, and that the surveyor general or his deputy shall survey all 
such lands as shall be granted by the lords , fyc. 

S&me book, page 41. The king, Charles II, by letters patent, 
dated June 29, 1674, grants to the duke of York, the State of New 
Jersey, in the same manner and by the same description as he had 
granted it March 12, 1663-4. This second grant was recorded No¬ 
vember 4, 1674. 

Same book, page 46. The duke of York, by deed, dated July 29, 
1674, grants to Sir George Carteret, (after reciting in its language 
nearly, the king’s grant of July 29, 1674.) his heirs and assigns, 
forever, u all that tract of land adjacent to New England, and ly¬ 
ing and being to the westward of Long Island and Manhitas island, 
and bounded on the east part by the main sea, and part by Hud¬ 
son’s river, and extends southward as far as a certain creek called 
Barnagatt; being about the middle between Sandy Points and Cape 
May; and bounded on the west in a straight line from the said 
creek called Barnagatt, to a certain creek in Delaware river, next 
adjoining to and below a certain creek in Delaware river called 
Kenkokuskill; and from thence up the said Delaware river to the 
northernmost branch thereof,” &c. And, also, all rivers, &c., 
fishings, &c., and all royalties, profits, commodities, and heredita¬ 
ments, to the said lands belonging. 

Same book, page 49. King Charles II, by letters which seem to 
be addressed to the magistrates in New Jersey, referring to certain 
troubles which had been caused by ill affected persons, recites that 
Sir Geo. Carteret, “ by grant derived under us, is seized of the pro- 


25 


[ 21 ] 

vince of New Coeserea, or New Jersey, in America, and the juris¬ 
diction thereof as proprietors of the same.” These letters are dated 
June 13, 1674. 

Same book, page 50. Some directions, instructions, and orders 
by Sir Geo. Carteret, dated apparently July 31, 1674, and some de¬ 
claration explanatory of the articles of concessions made by him. 

Same book, page 61, a quintiparte deed, dated July 1, 1676, be¬ 
tween Sir George Carteret, of the first part; William Penn, of the 
second part; Gawn Lawry, of the third part; Nicholas Lucas, of the 
4th part, and Edward Billing, of the fifth part. It recites, essen¬ 
tially, in their own words, of grant and boundary, the king’s grant 
of March 12, 1663-64, to the duke of York; the duke’s grant by 
lease and release of the 23d and 24th of June, 1664, to Berkely and 
Carteret; and then divides the State into east and west Jersey, the 
western boundary of the whole State not being disturbed. It 
assigns east Jersey to Cartaret, and west Jersey to Penn, Lawry, 
Lucas and Billing. 

Adjourned till to-morrow at same place, 10 o’clock. 


October 30, 1847. 

Met pursuant to adjournment. Present: the counsel, as before. 

Mr. Bibb puts in evidence a chart of Delaware river, from 
Bombay Hook to Ridley creek, with soundings, &c., taken by Lieu¬ 
tenant Knight, of the navy, composed and published for the use of 
pilotage by J. F. W. Des Barnes, esq., June 1, 1779. This map is 
an English map, and was made apparently from soundings, &c., 
taken while ye British fleet was in Delaware river, in November, 
1777. It was cut out of a large book of maps at Washington, in 
the department of the coast survey. On this map the only channel 
marked is on the west side of the Pea Patch. The east side is 
marked in small dots , indicative of shoals , hut the soundings are not 
given. 

It is received subject to all exceptions. 

A chart or survey of Delaware river, between Newcastle and Port 
Penn, under the direction of Captain W. G. Williams, United States 
topographical engineers; drawn by Lieutenants Drayton, Sill and 
Reed, United.States army, 1834. 

This was an original map, on a large scale, and was received sub¬ 
ject to all exceptions. It came from the Department of State at 
Washington. 

Mr. Bibb: Learning and Spicer’s laws of New Jersey, page 412. 
A deed, August 6, 1680, from the duke of York to William Penn, 
Gawn Lawry, Nicholas Lucas, John Eldridge, Edmund Warner and 
Edward Byllynge. It recites that the king had granted, March 12, 
1663-4, among other things, to ye duke, in fee, a tract of land to 
be called New Jersey, which he u hath upon the west Delaware hay 
or river f that the duke had granted the same tract to Berkely and 
Cartaret; that Berkely had conveyed his part to John Feninck in 
trust for Edward Byllynge; and so tracing title to the grantees or 



•26 


[21] 

confirmees, describing in one part of the deed a grant of west 
Jersey, page 414, as extending southward and westward along the 
sea coast and the before mentioned bay of river, (called Delaware 
river and bay;) confirms the moiety of Berkely to Penn and others, 
with all islands, bays, rivers, forts, waters, royalties, franchises and 
appurtenances whatsoever to the same, belonging or in any way ap¬ 
pertaining; as also the free use of all bays, rivers and waters lead¬ 
ing into or lying between the said premises, or any part of them, in 
the said parts of America, for navigation, free trade, fishing or oth¬ 
erwise; and all powers of government as fully as the king had 
granted them to the duke. It is declared that these several powers 
and authorities were given and granted to the duke and his assigns, 
u for planting, peopling and improving ” of the lands, places and 
territories thereby granted, and for transporting thither subjects, 
&c., as also for defending, guarding and keeping the same. 

Mr. Clayton now reads (the other side agreeing that they shall 
be read as evidence) two letters from Wilson M. C. Fairfax, of the 
United States coast survey; one to Professor A. D. Bache, superin¬ 
tendent United States coast survey, dated office of the coast survey, 
Washington, September 10, 1847, as follows: 

11 In response to yours of September 3d, I have the honor to state 
the answers, below appended, to your general queries, viz: 

u If a line were drawn midway between the shores of the river 
Delaware, near the Pea Patch, how would it pass in reference to 
the Pea Patch island? I answer: It will pass through the Pea 
Patch island, 46 yards northeast of the southwest extremity of _the 
wharf at the lower end of the island, which projects towards the 
Delaware shore; and 20 yards eastward of the middle point of the 
upper end of the island. 

What are the several distances of north and south extremities of 
the midline of the Pea Patch island from the Delaware and New 
Jersey shores? I reply: That the midline of the island will be at 
its northern extremity 2,090 yards from the Delaware shore, and 
2,130 yards from the Jersey shore; and the southern extremity, 
the midline of the island will be 2,197 yards from the Delaware 
shore, and 1,875 yards from the Jersey shore. 

What is the length of the island in yards; what its breadth; and 
what its area? Answ T er. Its length is 1,083 yards; its average 
breadth 461 yards; its area 87.60 acres. 

And the other letter from the same person to the Hon. John M. 
Clayton, dated office of the coast survey, Washington, September 
29, 1847, as follows: 

U I have this morning received, from Professor Bache, directions 
to reply to your letters of the 14th and 16th September, 1847, 
which I will now do. 

u l. What is the area of that part of the island on the Delaware 
side of the middle line of the river Delaware, and what is the area 
of that part of the New Jersey side of that line ? 

Answer. The middle line of the river throws twenty-one and 


27 [21 ]i 

nine-tenths acres of the Delaware side , and sixty-five and seven- 
tenths acres to the New Jersey side. 

“2. What is the main and deepest channel of the river opposite 
to the island ? Is it not on the Jersey side? What is the greatest 
and what is the average depth of the Jersey and of the Delaware 
channel ? What is, in truth, the main channel of the river at this 
point ? Answer. The main and deepest channel of the Delaware 
river , opposite the Pea Patch , is on the Jersey side. The greatest 
depth of water in the channel on the Jersey side is 40 feet , and on 
the Delaware side 25 feet. The average depth of water in the 
channel of the Jersey side is 32 feet , and on the Delaware side 23 
feet. But, to take the centre channel on either side of the island, 
no vessel drawing more than 19 feet water, at low water of spring 
tide, can pass through. The Jersey channel is the shortest and 
widest , and both about equally curved.” 

This letter goes on to say that the distance from the centre of 
the Pea Patch.island, and from each extremity to the spire, of that 
town, which was made a triangulation point, is as follows: 

From the centre of the Pea Patch to New Castle spire, 4.83 m. 

do upper end do do 4.61 m. 

do lower end do do 4.98 m. 

Adjourned until Tuesday, November 9, in this place, at 10 
o’clock, a. m. When all the counsel are again present as before. 

The return of James C. Mansfield, esq., to the commission issued 
to him October 13, 1847, (see ante,) is made, and the same was 
opened by the clerk. 

Mr. Bayard puts, in evidence, “Votes and proceedings of the 
H ouse of Representatives of the province of Pennsylvania, begin¬ 
ning the 4th day of December, 1682, vol. 1, Philadelphia, Franklin 
& Hall, 1772.” He cites at pp 168, 169, and 170, for the purpose 
of showing that the State of Delaware did always claim and exer¬ 
cise jurisdiction over the bay and river east of it. 

“The petition of several of the merchants and inhabitants of the 
city of Philadelphia, on the behalf of themselves and all others in¬ 
habiting in and trading to the said province.” The petition is ad¬ 
dressed to the general assembly. It sets forth the grant to Penn 
of Pennsylvania; the right of free passage over all harbors, bays, 
waters, rivers, and posts, up to the said State, and out of it; that, 
by the charter to Penn, the king had declared that no tax should 
be set upon any merchandise to be loaded or unloaded in the said 
ports, unless with the assent of the assembly here, or act of Par¬ 
liament in England; that, notwithstanding this, the governor had 
passed a law at New Castle imposing a tax , for the support of the 
New Castle fort , upon all vessels of a certain class coming up to 
Philadelphia. Praying redress, &c. This petition is dated 3 
Mo 8, 1707. 

Following this petition of the merchants to the assembly, is the 
petition of the assembly to the governor, complaining of the same 


28 


[21] 

exercise of jurisdiction by the State of Delaware; but so far as 
appeared in the proceedings quoted, the right had never been disa¬ 
vowed by the State of Delaware, though, as was said by Mr. Bayard, 
there were many circumstances or complaints against it. 

Mr. Bayard cites laws of the State of Delaware, volume 1, page 567, 
u An act for the more effectual ascertaining and fixing the limits of 
the several counties within this government,” &c., passed Septem. 
4, 1775. It recites the articles of agreement between Penn and 
Baltimore, the decrees of Lord Hardwick upon them, and that the 
lines of boundary so fixed and settled had been run by commis¬ 
sioners, and marked. It recites further, 82, that in 1767, a joint 
•petition was made to his present majesty by Penn and Baltimore, 
reciting the articles and decrees, &c.; in which petition they 11 prayed 
his majesty , that he would be most graciously pleased to give his royal 
allowance , ratification , and confirmation of the several and respec¬ 
tive articles and enrolled decrees , before mentioned , and every article , 
clause , and thing in them and each °f them contained , and that the 
same might be forever established between them; whereupon his 
majesty , by his order in council , dated January 11, 1769, was pleased 
to signify his royal approbation of the said agreement and proceed¬ 
ings mentioned in the petition of the said proprietaries , as all others 
whom it might concern , were ordered to take notice and govern them¬ 
selves accordingly .” It recites further, 83, that the honorable the 
governor, &c., of Pennsylvania and the lower counties, had, in 
pursuance to his majesty’s pleasure and permission , by proclamation, 
8th April, 1775, made known the premises, &c., &c. Then pro¬ 
ceeds to establish the boundaries. 

Mr. Bibb cites 1st Chalmer’s Opinions, p. 39, u on the king’s right 
to the three lower counties on the Delaware, by the A. G. and S. 
G., Mathy and Thompson.” It appears by this opinion, dated 
October 21, 1717, that u ye earl of Sutherland applied to ye king 
for a grant of a charter of certain lands lying upon Delaware bay , 
in America , commonly called the three lower counties , which , he 
represents , he is ready to prove , do belong to ye crown.” It is obvious 
that, in this opinion, which is too long to transcribe here, the earl 
made no mention to the attorney and solicitor general of the charter 
of 22, March , 1682- , 3, to the duke of York , now produced in origi¬ 
nal here before the arbitrator. No suggestion whatsoever is made of 
such a paper; no express opinion is given as to the goodness or bad¬ 
ness of Mr. Penn’s title upon the facts as then apparent; and the 
document thus concludes: u On the whole matter we humbly sub¬ 
mit it to your majesty’s consideration, whether it will not be reasona¬ 
ble that your majesty’s title should be established by the court of 
chancery , before any grant should be made of the premises; and, if 
any grant should be made, we most humbly submit it to your 
majesty whether the claims of purchasers or grantees under Mr. 
Penn, who have improved part of the said three lower counties, 
should not be established; but if Mr. Penn should have a title to 
the said three lower counties , by virtue of the two grants made to 
him by the late King James , in 1682, when duke of York, we have 
not received any answer why he should not account, &c.” 


29 [ 21 ] 

Cites same book, p. 189: u The opinion of Chief justice Morris, 
in New Jersey; on ye kind’s power of mercy.” No date. 

Cites the 2d map, in Mr. Penn’s big paper book, (produced by 
the United States,) to show that the 12 miles ’ circle came only to 
the west edge of the Delaware . 

Learning & Spicer’s laws of New Jersey, page 390, chapter vi., 
in the concessions and agreements signed by one hundred and fifty- 
one of the proprietors and freeholders, on the 3d March, 1676, 
u convenient 'portions of lands are granted for wharves , quays and 
harbors and also that the inhabitants have u free passage through 
or by any seas , bounds , creeks , rivers , rivulets , in the said province , 
through or by which they must necessarily pass to come from the 
main ocean to any part of the province aforesaid .” 

Also same book, page 409, chapter xliv., where pow T er is given 
to the assembly u w 7 ithin the said province to direct and appoint 
places for such and so many tow r ns, cities, ports , harbors , creeks 
and other places for the convenient loading and unloading of goods 
* * and merchandise out of ships , boats , and other vessels , as shall be 
expedient .” 

Same book, page 436, to show that in February, 1681, the com¬ 
missioners chosen for settling and regulating lands within the pro¬ 
vince prescribe that 11 the surveyor shall measure the front of the 
river Delaware , beginning at St. Pink creek , and from thence down 
to Cape May ,” and that each tenth, or ten proprietors, shall have 
the proportion of front to the river Delaware , and so far back into 
the woods as will make or contain 64,000 acres. 

Same book, page 480, to show that on the 8th or 7th month, 
1683, it was enacted by the general assembly of West Jersey, u that 
the proprietary, &c., of the province of Pennsylvania be treated 
with in reference to the rights and privileges of this province to 
or in the river Delaware .” 

Same book, page 519, to show 7 that the same assembly, in Octo¬ 
ber, 1693, passed a law reciting that the whale fishery on Delaware 
bay had been in so great a measure invaded by strangers and for¬ 
eigners, that the greatest part of the oyle and bone recovered and 
got by that employ hath been exported out of the province , to the 
great detriment thereof; and enacting u that all the persons not re¬ 
siding within the precincts of this province or the province of Penn¬ 
sylvania , who shall kill or bring on shore any whale or whales with¬ 
in the Delaware bay , or elsewhere within the boundaries of this gov¬ 
ernment , shall pay one full and entire tenth of all the oyle and 
bone made out of the said whale or whales unto the present governor 
of this province for the time being” 

Mr. Clayton reads from the laws of the State of Delaware, pub¬ 
lished in 1829, and already in evidence, page 274, “ An act for the 
preservation of certain shell fisheries within this State,” passed 
February 12, 1812. This act enacts that no person not residing 
u within this State ” shall take or gather oysters, &c., u within the 
same” except on conditions, and prescribes mode of proceeding 
for violation of the act. 

Same book, pages 275-6. An act passed February 12, 1829, to 


30 


[21 J 

regulate the use of gill nets or gill seines in the river Delaware, to 
impose a tax thereon, and to provide for the payment of the same. 
It enacts, section 1, that no person u shall place or use in the river 
Delaware , within the limits and jurisdiction of this State” &c. 
Sections 2 and 3 speak of using nets u in the river Delaware ” 

Mr. Clayton reads from u Laws of the State of Delaware,” New¬ 
castle, 1797, already in evidence, page 44 of the appendix, the ac¬ 
ceptance of Penn’s charter of privileges, October 28, 1701, and pa¬ 
pers therewith connected. 

Mr. Bayard reads from u Laws of the government of Newcastle, 
Kent, and Sussex upon Delaware,” Philadelphia, 1752, already in 
evidence, at pages 135-37, an enactment that if any convict or 
pauper u shall be imported into the river Delaware after the publi¬ 
cation of this act , and shall be found within this government at any 
time within the space of twelve months next after their being so im¬ 
ported as aforesaid , whether such persons were landed within this 
government or elsewhere ,” &c. And in a subsequent part of the 
same page speaks of them as u imported into this government, and 
put on shore, or permitted to go on shore, by such master or mer¬ 
chant, in any other government upon the river Delaware , or upon 
any island or place within the said river.” This act is 13th 
Geo. II. 

Same book, pages 146-7. An enactment for prevention of the 
danger that may a ise by piloting into the bay and river Delaware, 
the ships of enemies and pirates, which enacts u that no person or 
persons who are or shall be pilots within the bay or river ajoresaid , 
shall presume to go on board any inward bound vessels without the 
license of the governor for the time being first had and obtained ,” 
&c. This act is also 13th Geo. II. 

Mr. Bayard puts in evidence a very ancient paper, purporting to 
be an original patent. It reads: Sr. Edmund Andros, Knt. seig¬ 
neur of Sausmarer, lieutenant and governor general under his 
royal highness, James, duke of York and Albany, &c., of all his 
territories in America. Whereas, there is a certain parcel of land 
in Delaware bay lying and being in a neck called Kickout neck, 
divided by the Whorekill neck by a small creek, that goes by the 
name of Potskit creek, the which hath been laid out for Anthony 
Inlos, by the approbation of the court at Whorekill, and is certi¬ 
fied to be already seated; the said land beginning at a marked 
white oak, dividing it from the land of Alexander Motesteyn, from 
thence running southeast, southerly one hundred and fifty perches, 
to a marked white oak, standing by the marsh, and from thencej 
with a line drawn west three hundred and fifty-five perches, to a 
marked poplar, being the bounded tree ( f the said Alexander 
Motesteyn, and from thence, with a line drawn northeast 325 perches 
to the first bounded tree, being the dividing line between the 
said Anthony Inlos and Alexander Molesteyn, containing one hun¬ 
dred and fifty acres of land, as by the return of the survey doth 
and may appear. Know ye, that by virtue of his Majesty’sletters 
patents, and the commission and authority derived unto me under 
his royal highness, I have given and granted, and by these presents 


31 


[ 21 ] 

do he r eby give and grant unto Anthony Inlos, his heirs and assigns, 
the aforesaid parcel of land and premises, with all and singular the 
appurtenances, to have and to hold the said parcel of land and 
premises unto the said Anthony Inlos, his heirs and assigns, unto 
the proper use and behoof of him, the said Anthony Inlos, his 
heirs and assigns forever. He making improvement thereon ac¬ 
cording to law, and yielding and paying therefor yearly and every 
year, unto his Majesty’s use, as a quit rent, one bushel of good 
winter wheat, unto such officer or officers as shall be empowered to 
receive the same, at the Whorekill. Given under my hand, and 
sealed with the seal of the province, in New York, the 20th day of 
August, in the 31st year of his Majesty’s reigne, Annno q. Dominy 
1679. 


Examined by me 


ANDROSS 


MATHIAS NICHOLLS, Senior. 


Below: u This patent land and premises was assigned and ac¬ 
knowledged in open court the 14th day of June, 1681, by the 
above-named Anthony Enlos, to John Kipharen. Test: William 
Clark, jr., clerk.” 

Endorsed: ‘ £ A patent unto Anthony Inlos, for land in Delaware 
bay, No. 478—No. 30, John Hughes—No. 30, Richard Peters.” 

Benjamin Guscoin, a witness of J. Humphreys, having been duly 
affirmed by the Mayor of Philadelphia, says: I live in Salem; have 
known the Pea Patch about fifty-nine or sixty years. When I first 
remembered it, it would be covered at half-tide. At that time it 
was much nearer to’ the Jersey than to the Delaware shore. Since 
that time the Jersey shore has lost very much. When I first knew 
it, the larger .class of vessels were in the habit of passing on the 
west side. I never took notice of a square-rigged vessel coming on 
Jersey shore. It is difficult to say how much the Jersey shore has 
been w T asbed away. Opposite to the Pea Patch, not less than 150 
yards; about that, perhaps; I merely guess. The tides act irregu¬ 
larly. I have known the tide in one year to take away six feet of 
solid bank; then there may not be such another tide for several 
years. The tenant on the farm below me, told me that for nine 
years it averaged about a corn-row every year; that is, four or five 
feet. When I first knew the island, certainly it was considered 
nearest the Jersey shore. I never saw it measured. It looked near¬ 
er to New" Jersey. Sometime ago, I w T as for about nine years, and 
am now, also, one of the managers of New Jersey, having charge 
of river bank, on w T hich account my attention was directed to the 
subject. 

I have seen Dr. Gale several times on this island, exercising acts 
of ownership, and been with him; this was the sprino- before the 
soldiers went there; probably, spring of 1814; they took posses¬ 
sion in fall. Dr. Gale had a fishery on the island. He was part 
of one summer clearing rubbish and impediments. I saw him make 
several hauls. It was not a good fishery. The current swung his 
net round into deep water, and the fish went below. He caught 


32 


[ 21 ] 

some good shad. The first I ever heard of the State of Delaware’s 
claiming the island, was when the soldiers took possession. When 
I first saw the island, there were appearances which made me sup¬ 
pose the island was originally connected with the main shore on 
the Jersey side; that was my impression from what I took up from 
old people. 

The old men whom I knew, as a boy, are dead. I don’t know 
of cattle being driven across from the Jersey shore to the island. 
There was nothing for them to get on the island. I don’t think 
that I ever heard old men say that they knew of cattle being driven 
across, or had forded across from Fenn’s point. I lived at lower 
Penn’s neck upwards of twenty years; I lived there twice. I went 
there in 1800, and staid till 1813; then moved to Ellsensboro’, not 
much further; it is right on the bank of the river. The island was 
in view of my residence ever since I first knew it. I knew Morris 
Hall very well, and also Joseph B. Brown: both are dead. I know 
where the burnt house was; burnt in 1777 or 1778 by the British. 
The well which was then in front of the house is now in the river, 
150 yards from shore. At a very, an uncommon, low tide you can 
see the traces of it, bricks, &c. 

I was present when Dr. Gale was driven off his property. I was 
born July, 1776, and was about thirteen when I first saw the Pea 
Patch. I lived about a mile from Salem; was frequently before 
that time at Penn’s neck. Perhaps I have seen the Pea Patch be¬ 
fore I was eleven years old. I think I was first on the island in 
1801-’2. A great many of us went to drive off crows; they went 
from both States. I was there two or three nights. I went there 
afterwards, when Dr. Gale was there. I think, in 1812, he was 
there a good deal of the season. I saw him there. I was at work 
at Finn’s point. I think I can say it was the same*year Gale was 
there that the soldiers came there. I think it was in the year 1813 
that he cleared it, but am not sure whether it was 1812 or 1813. 
The soldiers came in the fall after he fished there. I was over 
there several times when Dr. Gales was fishing there. Can’t tell 
how many times, but several; he had a good many men. He did 
not ever embank the island according to my knowledge. In 1813 
when he came there, a tide fuller than common overflowed it* 
such a tide, for example, as we had October a year ago; a very full 
tide. It was a small frame house he put up there, big enough to 
hold twenty or twentj-five men: a small one stor}, rough-boarded 
house, weather-boarded; materials brought there; one room, per¬ 
haps, lo by 18 feet. It was built, I presume, for a fisherman’s hut. 

I saw no other building. This must have been put up for a fisher¬ 
man’s hut; but was put up by a workman, I should suppose; brought 
there and put up. The person who came there with the soldiers 
was named Captain Drummond; he had a sword by his side. I 
don’t remember seeing others in military dress. 

By Mr. Sargeant. I think that ever since I remember, light 
vessels, at the top of the tide, went through the east channel. 
Small vessels would often come in there for a harbor. It was very 
common. I remember once twenty-five coming in. The rise and 


33 [ 21 ] 

fail of the tide is about six feet. At low water you might walk 
three hundred yards off this bank. 

Adjourned until to-morrow, November 10th, at 10 o’clock; when, 
present as before. 

William Schellinger, a witness of the United States, having been 
sworn by Mr. Alderman Griscom, says: I am 57; served my time 
to Delaware pilots; am a regular Delaware pilot; got my third-rate 
branch, or certificate from wardens in 1817; have piloted a great 
many ships and brigs up and down this river. I was first on island 
with Captain Clark, of the topographical engineers, in 1813 or ’14; 
first boat that landed in behalf of the United States. I had known 
the island since a boy. I had been anchor sweeping, to the east, 
with Thomas Tarrent. I remember lying at Reedy island aboard 
pilot-boat, when a number of gentlemen came from Penn’s Point to 
scare off crows. I must have known the island as far back as 1801, 
or 1802. When I first went on it there was no house there of any 
sort; it was very soft mud. Captain Clark, of himself, ran a pole 
down, 18 feet; no embankment, nothing of the sort. This was in 
1813, the first time I landed with Captain Clark. They do now use 
the western channel. When I was anchor sweeping there, before 
the war, during the embargo, there was then seven fathom water, 
and is now; bottom foul. Abreast of island, water is deepest on 
the eastern side, and was so before the war. There never was a 
time, in my knowledge, that ships could not go through on the east¬ 
ern side. I have navigated many ships through there. In 1837, 
1838, and 1839, I have towed ships drawing 17 or 18 feet. For 
four or five years I have been engaged for Havre de Grace towboat 
company. See the island frequently. It is exclusively a mud for¬ 
mation. The Jersey shore is sand, and the eastern channel is hard. 
From the mud formation of the island, I should suppose it had been 
formed by the Delaware shore. There are other places very simi¬ 
lar; Cherry island, and a ridge near New Castle, above Delaware 
city. The channel to the east was not known before the war as 
well as now. It was frequented by vessels going to the Pea Patch. 
I dont say by square rigged vessels. The United States companies, 
one white, one black, hove up bank, frozen ground on the island, 
but it sunk with thaw. In February they sent me down to Lewis- 
town, with letter to commanding officer, informing him of peace. 
There is a shoal near Christina creek which will, in time, it is like¬ 
ly become several islands. Several islands have been made in my 
memory; one below Chester, which now has grass on it. 

It is my mere supposition that the Pea Patch is formed upon the 
Delaware side. Mud, I think, is not brought so far down the river. 
Th ere is a cove. I know Finn’s Point; it is sand. That shore is 
sand. I can’t say how it is 30 yards from shore. There is a bulk¬ 
head bar above the Pea Patch, and between it and the Pea Patch 
used to be water for 20 feet vessels. Not so much now; vessels 
frequent the western channel. *When I was raking, I found a deep 
hole abreast of the Pea Patch; seven fathom. I can’t say how 
wfis on Delaware side. It was mud; I did not sweep it. It has 
3 


34 


[ 21 ] 

been safe, at all times, to take vessels on Delaware side; no diffi¬ 
culty whatever. I had vessels not drawing more that 9 feet. I 
know where Salem creek is; it is below Pea Patch, perhaps two 
miles below, [note that, Bibb says,J not so much perhaps. When I 
used to navigate square-rigged vessels through the east channel, we 
went up at any tide, high or low. Ever since my remembrance 
there was a bulkhead bar above the coast, and a small channel, very 
narrow, between it and the Jersey shore. I never saw a vessel beat 
through there, before 1813. Within last four years I have seen 
light colliers and Boston packets, drawing about nine feet, go 
through on flood tide. The tide rises and falls 6 feet. 

I don’t know General Bloomfield. I believe I once saw him at 
Fort Mifflin with Commodore Rogers. We did not leave any body 
on the island in 1813; there was nothing on which they could have 
lived. We hauled vessels down. I can’t say if it was 1813 or 
1814; did not charge my memory. I had been froze up there for 
3 or 4 weeks; had to come for water to New Castle. The soldiers 
landed directly after the government took possession of the Pea 
Patch. I did not stay all the time from the day they ran the pole 
down the mud. I don’t know that I ever saw Dr. Gale. I saw no 
fishing house, nor shanty, nor shed, from 1813, when we landed 
there; they arterwards built one. I never saw Dr. Gale claiming 
the island or fishing there. 1 have seen, more than 12 years ago, 
a square rigged vessel on the Jersey shore. I myself piloted the 
ship Augusta, 13 or 14 years ago, 350 to 400 tons, through there 
on a flood tide. ^ In 1817 or 1818, 1 piloted small ships through of 
11^ to 12| feet, not so much sometimes, when coming from Charles¬ 
ton light with cotton. Before 1812, don’t remember ever piloting 
any sea vessel, but one, through there, a small topsail schooner, 
draft between 6 and 8 feet. Came through in 18l9-’20 or ’21, or 
about there, in Langdon Cheves and Wade Hampton, draught, when 
loaded,, about 12| feet. 

Re-examined by Mr. Bayard. 

When I went with Mr. Clark and ran pole, we remained pretty 
much all day; he was surveying. There was no habitation of any 
sort on island. Vessels were towed down to live in. After that, 
they established a little schooner, “The Adventure,” which ran 
down regularly. I went down, off and on, through the season. 

By Mr. Clayton. 

I have never been on Goose island. There is grass on it. The 
channel is on the east side. We used to tow vessels of 20 feet be¬ 
tween the bulkhead and island; not so now. If I had now to 
bring up the Pennsylvania with armament, I should bring her on 
the west side. I do not think she could now coine through on the 
east side nor on the west without towing It is wider on the east 
side. On the west side it is a small narrow drain. The west 
channel is nearer the Delaware shore. More water immediately 


35 [ 21 ] 

abreast of the Pea Patch on the east side than on the west, more 
volume. 

Persons, soldiers, came with crow scalps over to Delaware. 
Wnen I went on, there was no living thing on the island but crows 
and muskrats. I cannot say whether it was the spring of 1813 or 
1814 that I was there; one or the other. 

Re-cross-examination. 

The bulkhead bar—the lowest, shoalest part of it—as near as I 
can guess, may be about 3 miles above the north point of the Pea 
Patch. Good working channel down to New Castle. Below New 
Castle, it is a bar which prevents beating ships of 17 or 18 feet.' 
Near New Castle, it is shoal at this day. 

We had a chain to survey the Pea Patch when I was with Cap¬ 
tain Clark. I think he said he surveyed 30 acres for a fort. Island 
might have had forty acres. Goose island is uninhabited; by which 
I mean there is no population nor houses on it, nor cattle. No 
pasturage there; sometimes overflowed. 

4 

By Mr. Sergeant. 

The channel between bulkhead and Pea Patch is become more 
shallow; there is a sort of channel above the bulkhead and the 
Jersey shore. What channel there is, is there. You now go by 
western channel. Going now from New Castle down the western 
channel, you go between buoy and bulkhead. 

When we drove crows away from Pea Patch, we did not land; 
shot them from boats. When I first got my branch, there were no 
charts. 

John White, witness of Mr. Humphrey, having been sw r orn by 
the Hon. Justice Sharw T ood, says: I am not a pilot. I have been 
acquainted with chart of Delaware river since 1807. Since that 
time, the western channel has been considered as the main navi¬ 
gable channel. I have not been in the river business for 10 years, 
and don’t know what shoals have occurred there within 10 years. 
I became acquainted with the river by following the river trade on 
vessels of 60 or 70 tons. Since 1807, I have seen vessels worked 
through the east channel in fair wind; and, since the war, I have 
seen the Charleston packets, of whicli Mr. Schellinger spoke, go 
through. Whether they go un or down, they must have a fair 
wind and not have to beat for it. Measuring by the eye, I should 
suppose that the Jersey shore was nearest to upper end of island 
than the Delaware shore. The western has always been called the 
main navigating channel. It was so called even when I was a 
boy, and before I knew anything of the river business. Whenever 
there was any difficulty, it was always preferred with me; I speak 
of 10 years ago. 

Since I have known it the west was the broadest and deepest 
channel. Mr. SchePr has said that on the east side opposite the 


36 


[ 21 ] 

Pea Patch is deepest, but that is a hole. I should think that from 
the upper end of the island into Dragon cove, must be 3 miles. I 
went in 1807 in my own vessel; I have never navigated vessels of 
more than from 7 to 9 feet water, nor square rigged vessel. I 
traded from Cohaney creek to Philadelphia, all along shore; 
stoprted at Salem. I ceased nine years ago last August; con¬ 
tinued my business during all the war. 1 always went in the east 
channel, unless wind obliged me to go the ship channel. The ship 
channel is on the west side, and always has been, and always will 
be; for ages it has been so. I have seen small ships, with fair 
wind, go through the east. There were then navigating the Dela¬ 
ware much larger vessels than those of which I now speak, as 
large then, generally speaking, as now. The Woodrop Sims was 
as large. In the west channel, part of bottom is hard, and part 
soft; abreast of Pea Patch, hardest on Jersey side. I don’t know 
if large vessels could beat through the east channel; I never saw 
one do it; they might be able possibly to do it in my time; narrow 
work, head scraping, to get through. 

Liverpool packets are large vessels; I never saw them go on 
west, always went on east. All large vessels went on that side; 
they went through safely, vessels of 400 tons; India vessels with 
cargo. 

Re-cross-examined. 

The persons who navigate small vessels are usually good pilots. 

I resided at Cohaney 30 years, there and there abouts. I moved 
here in August, 1838. I should think navigators of small vessels 
must be good pilots, for they must know the smaller channels as 
well as deep. 

Michael Lewis, a witness of J. Humphrey, having sworn by Mr. 
Justice Sharwood, says : I was a pilot on this river many years 
ago; I am now 83; I have known the channel 40 years. Then, 
and since, the west channel has been considered the main ship 
channel; I think the Pea Patch is about the middle of the river, 
perhaps, nearest the Jersey shore; I have seen square-rigged ves¬ 
sels pass on both sides, but to pass on east, they required fair 
wind. A small one might beat through, but it would have to be a 
small one; the width would allow no other; always within my 
knowledge the west has been considered the main ship channel. 

I reside in Philadelphia, and almost forget when I became a pilot, 
it is so long ago. During the war time I went to sea, and was 
taken prisoner; I was a pilot for about 40 years; I have not acted 
much as a pilot since the war; square-rigged vessels went on both 
sides of the Pea Patch at the time I was pilot, according as the 
wind was fair or not. The plat A, represents the bulkhead bar. 
The distance from the outer side of Salem creek bar to the Pea 
Patch, would be about a mile and a i.alf. 

Joseph Way, a witness of Mr. Humphrey’s, having been duly sworn 
by Mr. Justice Sharwood, says: I have been on the river since 


i 


3? 


[ 21 ] 

1793; have lived in Philadelphia since 1812. Before that time I 
lived ten years at Cape May; I am 83; I am acquainted with the 
river between here and Delaware city. I am acquainted with the 
Pea Patch; it has always been considered that the west channel is 
the main ship channel; it has been so considered, except, perhaps, 
foT a time since the war, then the Jersey side was considered the 
main channel. Abreast of the Pea Patch the channel—the west 
channel—filled up, and then, afterwards, it opened again, and be¬ 
came again the main channel. I am acquainted with the shoal op¬ 
posite Salem creek; it can hardly be called *a bar. I don’t know 
anything about such bar as is marked on plat A; the Pea Patch 
is rather nearest Jersey shore. 

Before 1812 square-rigged vessels usually went the western chan¬ 
nel; I know that I never went any other, unless I got in there in 
the night, and was in a small vessel. I was not in those days ac¬ 
quainted with that side; I never went in it; the other was always 
considered the best. There are now islands in places where, in 
my younger days, I have run ships, and there are places where 
islands have gone away into the water; the channel in those parts 
is constantly changing. 

Before the war I never carried a large vessel through the eastern 
channel; I took the other side, which was considered the main 
channel. After the war the east channel was deeper; then the 
west channel again. The first 74 built in Philadelphia went down 
on the west side. 

Joel Alderman, a witness of J. Humphrey’s, having been duly 
sworn by Mr. Justice Finlay, says: I am 61 next December; have 
been in the river trade about 24 years—part of the time as a hand, 
and part as a skipper; first knew the river in 1805. The west was 
the main ship channel; I never saw a ship of any size go on the 
other; I have seen small craft; all larger vessels pass on the west. 

I should suppose the island is nearer the Jersey shore, but never jj 
took notice. I continued navigating from 1805; I have no know¬ 
ledge since 1825, since when I have been at home; my vessel was 
not of more than 60 tons. I traded from Jersey side of the bay up 
to Philadelphia. In the war was in a gun-boat of the United 
States drawing 4^ or 5 feet; I never paid attention to soundings. 

William Galloway, a witness of J. Humphrey’s, having been duly 
sworn by the mayor, says: I am not a'pilot; I have traded up and 
down the river. I first commanded a boat when 10 years old; that 
is, my brother was asleep and I navigated her. I am 29 last Fri¬ 
day. The west is certainly the main ship channel; never saw a 
ship go up or down the other; there is not berth there to beat 
through; on the west there is. There are other reasons why a ship 
will go the west: 1st, if there was water enough (w r hich there is 
not) to go by the bulkhead, there are eddying tides there, which 
make you have to stay her through, instead of beat her through— 
west there is no such thing, no obstruction whatever; 2d, the west 









38 


[ 21 ] . 

has anchorage, which there is not on the east, where the bottom is 
hard. Vessels have gone through the east on a full tide—full flood 
tide—because it is shorter; but vessels that have gone through 
then cannot go through now; and there is danger about the bulk¬ 
head shoal. It is muddier there; and after a heavy rain and a 
northeast wind it will fill up there; the flats will continue to rise. 
I know that the water is deeper on the east side of the Pea Patch, 
right abreast of it, but it is shallower as you come up to the bulk¬ 
head shoal; it there gets quite shoal. The island lies nearer to 
Jersey. I think there is no question its head lies nearer to Jersey, 
and I think the major part lies nearer to Jersey. The main force, 
or body of the water, is on the west. There is a great shoal ex¬ 
tends out of Salem crfeek, and runs all the way up the bulkhead 
shoal; it runs out a great way. The bulkhead shoal spoils that 
channel; blocks it up, and vessels will only venture over on flood 
tide and fair wind, I should suppose. 

I think the bulkhead is so shallow that scarce a steamboat draw¬ 
ing 5 feet, would go safely at full speed; she might bind—she 
would go, probably, at half speed, or else incur danger. I have 
been engaged as a trader from Salem to Philadelphia and Balti¬ 
more. My family lived at Salem; I lived in my boat. The draught 
of my vessel was from 9 to 10 feet. It depends on the wind which 
channel I took. I undertook to command a vessel at 14 years; 
that is, my brother and I together; one would command when the 
other was asleep. I believe the Pennsylvania went down the W. 
There was an opening then, which afterwards filled up; I don’t 
think any man could be found to take a vessel of 20 feet water 
through there; I have many a time sounded. I don’t think, to the 
best of my knowledge, a vessel of 20 feet could have passed 
through last year. I sounded last year; I have often sounded all 
those channels; hauled anchor, and that is better [than] sounding. 
I have sounded the west channel, and, in spite of Captain Schel- 
linger, I think the Pennsylvania could go through there now. I 
could carry, now, 28 to 30 feet through there on a full tide; on a 
very full tide, I mean. The tide rises from 6 to 8 feet; 6^ to 7 is 
the ordinary tide. 

Mr. Clayton now offers to' read the return of James C. Mans¬ 
field to the commission, which was issued to him October 13, 
1847. Mr. Bibb says that there are objections to the form of the 
interrogations, and to the substance which follows. The deposi¬ 
tions and papers connected with them, the whole being returned 
herewith as exhibit No. 1, were then read, the points involved by 
by Mr. Bibb’s exception being reserved. The witnesses whose de¬ 
positions were read, were, Thomas Clayton, Kensy Johns, Robert 
H. Barr, Thomas Janvier, William Robinson, James Rogers, James 
Booth, George Sutton, James Sutton, William McKeaver, Charles 
H. Black, and Nathaniel Wolf. 

Mr. C.layton then read a document, certified under the hand of 
the clerk and seal of the superior court of Delaware, New Castle 
county, to be a true copy of the record and proceedings, as the 
same now remain in the said superior court in the case of Mark 


f 






Richards vs. Florimond Dusar, otherwise called F. Dusar, referred 
to by James Rogers in his deposition in exhibit No. 1, accompany¬ 
ing these minutes. 

Mr. Clayton read this record for the purpose of showing the 
correctness of Mr. Rogers’s statement, that every defence was set 
up that was considered available , and no plea to the jurisdiction 
was set up. —See exhibit No. II, accompanying these minutes. 

Mr. Bayard put in evidence a paper under the hand of the clerk, 
and seal of the district court of the United States for the Delaware 
district, containing “ true copies of libels, &c., on record” in the 
said clerk’s office; “and also extracts from the record in said 
cases.” This certificate is dated 8th November, 1847.—See exhibit 
III, accompanying these minutes. 

Mr. Bayard puts in evidence a compilation of the public laws 
of the State of New Jersey, passed since the revision in the year 
1820. Arranged and published under the authority of the legis¬ 
lature, by Josiah Harrison: Camden. Printed by T. Harrison, 
1833, and cites, p. 39, 4, 5 and 6, of “a further supplement to 

an act for dividing and ascertaining the boundaries of all the 
counties in the province,” passed January 21, 1709. Passed the 
28 th November , 1822. The sections quoted an act, § 4, “ that the 
northern bounds of the county of Salem, shall be taken and deemed 
to be as follows: To extend from the middle of the channel, at the 
mouth of Old Man’s creek, to the main ship channel of the river 
Delaware , striking the same at a right angle, and the southern 
bounds extending from said ship channel along the Cumberland 
line to the middle of the channel at the mouth of Stow creek.” 
§5, “that the northerly bounds of the county of Cumberland 
shall be taken and deemed to extend from the middle of the channel , 
at the mouth of Stow creek ) to the main ship channel in the river 
Delaware , striking the same at a right angle; and the southern 
bounds shall be taken and deemed to extend from opposite the 
middle of the mouth of West’s creek, to the main ship channel in 
Delaware bay , making a right angle therewith.” § 6 carries the 
boundary between Cape May and Cumberland county into Delaware 
bay, “ until it strikes the line of said counties at the ship channel 
of the said bay .” 

• 

Adjourned until to-morrow, at 10 o’clock; when, present as 
before. 

Mr. Clayton puts in evidence “ the laws and acts of the general 
assembly of his majesty’s province of Nova Caesarea, or New 
Jersey, as they were enacted by the governor, council, and general 
assembly, for the time being, in divers sessions, the first of which 
began in November, 1703. Printed and sold by William Bradford , 
printer to the king’s most excellent Majesty for the province of 
New Jersey , 1717.” He cited p. 11, 13, “an act for dividing and 
ascertaining the boundaries of all the counties in this province .” 
It recites, “ whereas, by the uncertainty of the boundaries of the 
counties of this province , great inconveniences have arisen, so that 
the respective officers of most of those counties cannot know the 


40 



limits of them. For the preventing the same in time coming , and 
the better ascertaining the boundaries of them, be it enacted, &c., 
&c. Burlington county concludes, “thence along ye said line of 
partition by Maidenhead and Hopewell, to the northernmost and 
uttermost bounds of the township Amwell; thence by the same to 
the river Delaware; thence by the river Delaware to the first men¬ 
tioned station. Gloucester is along the said bounds to the sea; 
thence along the seacoast to Great Egg Harbor river; thence 
up the-said river to the fork thereof; thence up the southernmost 
branch to the head thereof; thence direct to the head of Old Man’s 
creek; thence down the same to Delaware river to the place of begin¬ 
ning, (the mouth of Pinranquin creek.) Salem county begins at 
the mouth of Jecais creek; thence up the same as high as the tide 
floweth; thence direct to the mouth of a small creek at Tuckahoe, 
where it comes into the southernmost main branch of the fork of 
Great Egg Harbor river; thence up the said branch to the head 
thereof; thence, &c., to the Delaware river and bay to the place of 
beginning. Cape May county begins at the mouth of Jaceacs 
creek; thence up the said creek, &c., far as the tide flows; thence 
along bounds of Salem county to the southernmost main branch of 
Great Egg Harbor river; thence down the said river to the sea; 
thence along the seacoast to the Delaware bay, and so up the said 
bay, fyc. 

Mr. Clayton puts in evidence “the acts of the general assembly 
of the province of New Jersey, from the time of the surrender of 
ye government of said province to the fourth year of the reign of 
King George II. Philadelphia: Printed and sold by William and 
Andrew Bradford, MDCCXXXII.” He cited pages 19, 20, on 
which is found the same act as on the book last cited. 

Mr. Bibb cites laws of the State of Delaware, published in 1829, 
and already in evidence, page 590, u an act for the more effectual 
ascertaining and fixing the limits of the several counties within this 
government (the same act, section 4, cited ante, page 41, by Mr. 
Bayard,) in which act the divisional line between the counties of 
Kent and Newcastle is thus fixed: “The line dividing the counties 
of Newcastle and Kent continued from ye mouth of a branch issu¬ 
ing from the main branch of Duck creek,” and running west- 
wardly. 

Cites also laws of the State of Delaware, published 1797, and 
already in evidence, volume 2, page 1174. “A supplement to an 
act entitled an act for opening and establishing a land office within 
the State,” &c. Reciting that whereas the soil and lands of the 
State were formerly claimed by the crown of Great Britain, and 
whereas, by the treaty of peace, they became the right of the 
people of the State; u and whereas the claims of the late and former 
pretended proprietaries of this State to the soil a?id lands contained 
within the same, are not founded either in law or equity, and it 
is just, right and necessary that the citizens thereof should be 
secured in ye enjoyment of their estates, rights and properties 
and confirms all patents, &c., for lands within the State, by the 
duke of York, the proprietaries of Maryland, and the pretended pro- 


41 [ 21 ] 

prietaries of this State, made before January, 1760, and absolves 
them of all sorts of rents , fines and services whatsoever . ' 

Mr. Bayard cites ye same book, page 1160. “An act for opening 
and establishing a land office within the State, and for ye sale of all 
vacant and uncultivated lands therein.” This act passed June 19, 
1793; enacts, section 8, page 1164, “ That nothing in this act con¬ 
tained shall impeach , impair , or in any manner whatever call in 
question the title to any lands in this State , held under any grant , 
warrant , survey , re-survey or patent , made or issued before ye year 
of our Lord , 1776, but that all such titles shall be good and avail¬ 
able in law and equity .” 

Also, same book, page 1077. “An act concerning vacant and 
uncultivated lands,” passed February 2, 1793. Reciting that the 
minds of the good people of the State are much alarmed and dis¬ 
quieted by warrants for surveying lands being issued, without the 
authority of the State, and that the peace thereof will be disturbed 
by such proceeding. Then section one makes it penal, in $100, for 
• any body inhabiting the State to take or receive any warrant, or 
make or cause to be made any survey in consequence of such war¬ 
rant, or take or receive any writing for any vacant or uncultivated 
lands, from any person not acting under the authority of the State. 
Section two enacts that no warrant issued since July 4, 1776, shall 
be laid or surveyed by any surveyor, nor any patent granted, or 
deed received, or any warrant or survey either issued or made 
since July 4 th ) aforesaid , under penalty of $100. 

John Johnson, a witness of Mr. Humphrey, having been duly 
sworn by Alderman Cook, says: I am not a pilot, but a trader; 
have followed the river for 20 years; I am between 35 and 40 
years, and now reside in Kensington. I have been acquainted about 
the Pea Patch; have been a great deal about all the channels, on both 
sides of Pea Patch. The west is considered the main ship chan¬ 
nel, as far as I know. There is a bulkhead shoal which makes it 
difficult for vessels to go on the other side. Large vessels go west; 
I have very seldom seen a pilot take a large vessel east. One 
could not beat through with head wind. Not a large ship; a brig 
might perhaps go through. About 12 years ago, I surveyed them 
with United States surveyor. The largest volume cf water is on 
the east, but the main channel is west. When I say the largest 
volume is on the east, 1 include the cove. Leaving the cove out, 
the largest volume is on the other side. I was continually, for 
six weeks or two months, with the United States surveyors, sur¬ 
veying these channels. I did not take much notice before that, 
although I have known them from a boy. Right close to the Pea 
Patch, opposite the Jersey shore, it is six fathoms deep. After 
that comes shoals. Channel may be 150 yards. It begins to get 
shoal soon after you get above the Pea Patch; small vessels gen¬ 
erally go that way. I have seen a ship go through therein a fair 
wind. I have frequently seen them tack on the Delaware side. 

I do not remember the exact year that I was with the United 
States surveyors; it was with Captain Williams; at least, he ap¬ 
peared to be the head gentleman. I was employed as an oarsman. 


\ 


42 


[ 21 ] 

The bulkhead is above. Salem cove is nearly opposite the Pea 
Patch. On the west side the channel runs about centre. On east 
clear to Pea Patch. A cove runs whole way from Delaware city 
to Newcastle; channel runs to westward. I do not remember the 
relative width and depth of these two channels. When I was with 
Captain Williams, both were sounded, but I have no specific recol¬ 
lection. The west, I suppose, may be a couple of hundred yards 
or more. 

John Adams, a witness of Mr. Humphrey, having been sworn 
by Alderman Cook, says: I am not a pilot, but a seafaring man; 
a waterman or trader on the river. I have been up and down river 
off and on for 22 jears. I have been in ship drawing 18 feet; in 
some larger ones, I guess. The main ship channel is the west, or 
that which pilots so call. I have been through it in 50 square 
rigged vessels in my time. I never saw any large vessels pass up 
Jersey side, but one; and that is 20 years ago. The only shoal 
on the east side is the bulkhead. It may be 400 yards above 
island, I cannot tell exactly, before you come into shoal water. 
There was more water there 20 years ago than there is now. I once 
passed through in a large vessel on full tide and fair wind. We 
could not have beat through that channel; through the west you 
always can. Pilots always take them up west, and bring them 
down west. I have been on the island, and it is nearer I should 
say to Jersey. 

The vessel on which I came up east was William Penn, 15 feet 
water. It is near 18 or 20 years ago. I was a sailor on her. I 
never commanded any but small schooners. I have been in almost all 
the packets, and in the New Orleans packets. I do not know much 
about the channel opposite the island on the east; it is very nar¬ 
row, and runs close to the island. The channel on Delaware side 
is nearer Delaware shore. The east is the straight channel. It 
cuts a bite off the sea. The west is nearer the middle of the river. 
The Patch is nearer the eastward. What I call “the river” is on 
the west, because I have been through the west with 50 square 
rigged vessels, and have not been through the other with more 
than one. I think 5 fathoms is the greatest depth on the east. I 
should say channel on west is 150 or 175 yards; not over that. I 
cannot remember. I do not think that general depth of east ex¬ 
ceeds 4 fathoms; it may be 20 feet. Channel opposite, to island is 
wider on east; I speak of 20 years ago. That is the time I came 
through. I judge, by beating through in small schooner which did 
not draw more than 7 feet, and for them there was water enough. 
The channel near the bulkhead was better 20 years ago than now, 
I should suppose, but do not say for certain. I am unacquainted 
with the state of the channels now. 

Re-examined. 

The shoals opposite tne Pea Patch and Salem creek come within 
150 yards of the island. 

Mr. Bibb offers Kilty’s Laws of Maryland, 4to, Annapolis, 1799 , 


43 


[ 21 ] 

vol. 1; no pageing. At the beginning of the book, charter to Lord 
Baltimore, dated June 20, 8 Car. I, to show that Lord Baltimore^ 
limits came but to Delaware bay and river. 

George W. Tompkin, a witness of Mr. Humphrey’s: It has been 
so many years (nearly 24) since I have been up and down the Del¬ 
aware, that I don’t know that I can give much light. I am not a 
pilot, but a master of a vessel of 45 tons, which I own and trade 
upon. I first become acquainted with Pea Patch in 1821. When 
I followed the water it was considered that the main ship channel 
was west. I took some pains to inform myself as to depth on both 
sides, and made some inquiries as to channels. My vessel was 45 
tons, and drew about seven feet. I generally went on Jersey side, 
my vessel being small, and the distance being shorter on that side. 
With her I could beat up at any time and tide. So far as I could 
judge, it would have been imprudent to beat up with large vessels 
drawing 15 or 16 feet water. It would have been impossible for 
such a vessel to beat through with a head wind. I have no recol¬ 
lection of ever having seen more than one square rigged vessel go 
east, and that was on a flood-tide and with a southwest wind, which 
is a fair wind. The island is nearer to Jersey; that is to say, at 
the south end there is a little difference from Reedy point to that 
end, and from Salem creek to it; but the north end is nearer to 
Jersey. I am not now acquainted with the shoals, though I was 
when I traded there. Opposite to Salem creek the channel is very 
wide, there being at that place a sort of basin. Up towards the 
bulkhead it grows narrow, very narrow and difficult. You would 
not get a pilot to take a vessel drawing 10 feet water along there. 
There is a bar, called Goose bar, about a breast of the bulkhead, 
which makes the passage difficult; almost impossible, except to a 
person well acquainted with it. It is the two bars which come out, 
one from Finn’s point, and one from the Pea Patch. It is this 
which makes the difficulty, or did so 20 years ago. Goose bar is 
rather above the range of the Pea Patch. From this narrow chan¬ 
nel to the north point of the Pea Patch may be half a mile. 

I first commenced navigation in the spring of 1821, and ceased in 
the fall of 1822; but I have been up and down the river since oc¬ 
casionally; not in my own boat. My vessel was the Betsy Taylor. 
She went from Philadelphia down to Egg Harbor; she hailed from 
Camden; draught, deep loaded, seven feet. I used east channel, 
but have passed through west. After you pass the bulkhead chan¬ 
nel it is a broad and deep channel all the way down the Delaware. 
The eastern shore would be the nearest channel. Abreast the Pea 
Patch the char nel is nearest the island on the east. I am not 
much acquainted with the west. The difficulty on the east is to 
get into it, or out of it, owing to the bulkhead at the north. The 
shoals or flats from Salem creek don’t interfere with navigation. 

Charles Goss, witness of Mr. Humphrey, sworn by Alderman 
Cook, says: I am a pilot between Philadelphia and Bristol, not 
down the river or bay. I became acquainted with the river 30 


44 


[ 21 ] 

years and more. Since I was 10 years old, and I am now 50, on 
3d July; west was always considered the main ship cannel. I used 
to live at Egg Harbor. I never did see a large vessel go east unless 
it was a light vessel in ballast. All the packets—the East India 
traders, the Liverpool liners, all large vessels, in short—are in the 
habit of going up and down the west. I have been on Pea Patch 
a gunning; can’t say to which shore it is the nearest. Before the 
fort was commenced, I went to shoot reedbirds, and have shot a 
crow once and a while. I might have been nine or 10 years in 
habit of going up and down there. I have been down in all sized 
vessels; in General Wade Hampden when she was in the Charles¬ 
ton trade. Have been down since the last war; yes, indeed; I took 
west channel. I now live in Kensington, and pilot from here to 
Bristol, which I have followed for 16 or 17 years. I have been 
down the river since, taking passage to Egg Harbor in small ves¬ 
sels, such as we might take either channel with. I have been in 
both channels. 

Eli Herbert, witness of Mr. Humphrey, sworn by Justice Shars- 
wood, deposeth and says: I am acquainted with Pea Patch. I was 
there in 1813, from some time in the latter part of April or May 
to August. I went down to fish for Dr. Gale. He caught shad 
there. I was in company with Dr. Gale. I think there was 13, 
14, 15, 16, 17 of us. There was thirteen of us to haul. Dr. Gale 
and J. Sermenter, (the son-in-law or step son of Dr. Gale,) em¬ 
ployed me. They went down to fish. There was a house, a fish 
cabin, on the island; it was erected by Dr. Gale in April or May, 
1813. The house was built for a fish cabin; it had berths—two 
tiers of berths—for the men to sleep in; it was boarded up at the 
sides, roofed in, and rain-tight, at all events. We all of us lived 
in that house, slept there, and cooked there. We caught some fish, 
not a great many, because I suppose the bottom was foul. I don’t 
think it was much profit to Dr. Gale; I don’t know, but his expenses 
seemed pretty heavy. I don’t knowhow often his hands were paid 
off. I was paid by Mr. Sermenter, with whom I went as a boy or 
servant, more than anything else. We took provisions down with 
us. Dr. Gale remained from April to August. While we were 
there, General Bloomfield and two persons I did’nt know, came 
there. I did’nt know what his object was in coming there. They 
came in a boat, and got out of their boat into ours. I helped to 
row him round the island. I did myself hear him ask Dr. Gale 
what he would take for the island. I did not hear him say what 
he wanted the island for. The circumstances of which I speak 
occurred during our stay there. I do not remember whether Gen¬ 
eral Bloomfield was in uniform or not, nor whether the others with 
him were. I believe Dr. Gale would have sold. He did not men¬ 
tion his price to me. He afterwards said, in the presence of the 
hands, that General Bloomfield wanted to buy the island. We 
left the house standing in 1813. I have not been down since. 

At the time I was there, the west was called the main ship chan- 


45 [ 21 ] 

nel. It is nearer the Delaware shore than to the Pea Patch, I be¬ 
lieve. 

I was born July 5, 1798. I am sure it was in 1813 that I was on 
the island. I have the means of fixing the date. I went an ap¬ 
prentice in 1814, and it was a year before that. I do not know of 
my own personal knowledge, who put up the house or cabin, of 
which I have spoken in my examination-in-chief. I found it there 
when I went. It was not a large house, twelve to fifteen feet, one 
story high—high enough for a man to walk in. It was a board 
roof, no chimney; we used a stove, and there was a stove pipe 
hole. The boards were not planed—rough boards—pine boards I 
suppose; but whether the weather boarding ran up and down or 
cross-ways, I cannot say now. The house was not plastered; had 
a rough floor, raised on piles about three feet from the ground; had 
no brick or stone foundation work. I have never been there since 
I left the place in 1813. I can’t say whether it was in April or May 
that I went there. I had seen General Bloomfield before, that is 
to say, I had seen a man at Bordentown that they called General 
Bloomfield. I do not remember whether their boat came to the 
Pea Patch from Delaware or from New Jersey. It was in our boat, 
into which he came from theirs, that he asked Dr. Gale what he 
would take for the island. They came some time in the forenoon, 
and remained long enough to go round the island. I do not re¬ 
member the names of any of the hands there except one, that was 
Jamer Parcer. He is dead and gone, I reckon. 

Re-examined. 

People came over frequently from Delaware and from Jersey 
shore, and bought fish of us; from Dr. Gale, when he was at hand, 
and from the captain, when he was not. I dont mean that Dr. Gale 
went, at any time, absolutely away from the island. I dont remem¬ 
ber the names of any one of the captains. I remember the name 
of one person who came over to buy fish; he was named Ribold and 
lived just opposite the island. We took the stove to the island of 
which I have spoken. The house on the island was just newly put 
up when I saw it. 

Mr. Bibb puts in evidence a chart of Delaware bay and river, con¬ 
taining a full and exact description of the shores, creeks, harbors, 
soundings, shoals, and lands, and bearings of the most considerable 
land marks, & cl, faithfully copied from that published at Philadel¬ 
phia, by Joshua Fisher, &c., published May 12, 1794, by Laurie & 
Whittle, 53, Fleet-street, London. This chart is in a book of maps, 
called the Second Part of the North American Pilot, published 1795J 
The chart, or the original of it, is “ recommended” as a very exact 
performance, and one which will greatly contribute to the safe navi¬ 
gation in ye said bay, as the several drafts, heretofore made, are 
very imperfect, and no dependence to be had on them.” The names 
of twenty-two pilots and twenty-two masters of vessels are ap¬ 
pended in engraving. On this map the channel is drawn on the W. 
and the island is drawn as a shoal. 



46 


t 


[ 21 ] 


Mr. Clayton offers a chart of u Virginia, Maryland, Pennsylva¬ 
nia, East and West Jersey; sold by John Mount and Thomas Page, 
Tower Hill,” This map appeared to be lrotn a very ancient plate, 
but u The English Pilot,” in which it was a chart, bears date of 
u London, printed for Mount & Davidson, on Tower Hill, 1794.” 
No island or channel is marked. 

John Corkrin, a witness for the United States, having been duly 
sworn by Mr. Sharswood, says: I lived on the Pea Patch for fifteen 
years. I first went on in April, 1823, and remained till August of 
that year. I went on again in May, 1833, and remained on till the 
29th of October, 1847. I was once turned out by process from the 
circuit court of the 'United States, New Jersey, December, 1838. 
After being turned out, I held under Mr. Hudson, as tenant at will. 
Mr- Hudson, I believe, married a grand-daughter of Dr. Gale. The 
United States turned me out of possession in November, 1843, 
Lieutenant Harrison took possession for the United States, and re¬ 
mained on the island six weeks. Then I returned and took posses¬ 
sion for the United States. The United States had exclusive pos¬ 
session all the time that Mr. Hudson had not possession, and he 
had possession from December, 1838, till November, 1843. 

The government built a fort on the island, embanked it, and built 
houses for workmen and for head quarters. The building cost from 
eight to ten thousand dollars. The head quarters began in 1824, 
and the house of the assistant engineer, Mr. Behling, in 1823. The 
fort was made of stone, heavy masonry, very heavy wall founda¬ 
tion, I should think, about 14 feet thUk. I should think that 300 
guns could be mounted on the fort, i. e.,that there were embrazures 
for that number, I once counted. I suppose from the appropria¬ 
tions made for the fort, it must have cost $800,000 or $1,000,000. 
It cracked after having been first put up, owing to having been put 
up on piles; the embankment at first was not of stone. The old 
fort was burnt February, 1831. When I first went there, the gov¬ 
ernment had on the island, and now has, a great deal of valuable 
property. There has been there since, and is now, a great deal of 
such property: great quantities of timber and lumber, rigging, ma¬ 
chinery, five steam engines, and a great deal of valuable property, 
which it is absolutely necessary that there should be an agent of 
the United States to take care of. (Mr. Bibb here reads a paper 
produced by the United States, on notice from other side, from 
one of the departments at Washington, a paper called memorandum 
of lease, signed and sealed by John Corkrin, Louis Greble, John 
Till, B . Cooper, Jerem. W. Colvin, Edward Cowden, William 
Powell, Isaac Jones, dated December 8, 1838, by which these per¬ 
sons agree with J. T. Hudson, of Alton, Illinois, to hold from 
him, as tenants at will, the island called the Pea Patch; see ex¬ 
hibit 3. 

The persons whose names are to this lease, were with me on the 
island; they were all in the employment of the government as la¬ 
borers or carpenters. After we were turned out by the writ in fa¬ 
vor of the United States, Lieutenant Harrison afterwards went in, 
and after he had been in six weeks, I went in. 


47 


[ 21 ] 

% , * i 

I have not any personal knowledge about the channels; I have 
frequently seen square rigged vessels, ships, and brigs, beating up 
and down the eastern channel. The United States ship Pennsyl¬ 
vania went down it in 1837, December. I believe from the Pea 
Patch to the Jersey shore, taking the whole island, is a greater 
distance than to the Delaware shore. I should think the greatest 
body of water is on the eastern side. The Delaware channel runs 
near the Delaware shore; the New Jersey channel is close to the 
Pea Paten, about the same distance from it that the Delaware 
channel is from the Delaware shore. The E. is nearer the centre 
of the river. I have seen between the Pea Patch and Delaware 
shore a bar exposed for 10 to 12 acres, which I never did on the 
other, which'is the E. side. Which is the main ship channel, is a 
question I would not like to answer. I have seen the lead tried 6, 
7, and 8 fathoms close to the island on the east side; and, about 
three winters ago, in time of ice, I saw a large ship pass up that 
channel—as large as one of Cope’s liners. 

.» When the Pennsylvania went down, she went about a half a 
mile from the island. (The clerk being desired by Mr. Bibb to 
note that , the witness says:) I could not judge 'positively. As to 
distance from the two shores, I should decidedly prefer the Dela¬ 
ware shore, as being the nearest. To the lower part of the island 
and about as near to the Delaware as to the New Jersey from the 
upper. But from both ends, 1 should say Delaware is nearest. 
I have rowed from Pea Patch to Delaware in 15 minutes, and I 
cannot do it to Jersey in less than 20. I have heard others say 
the same. I never measured the distance by Alation. I live in the 
city of Philadelphia. I first saw Fort Delaware in 1823. I 
passed by the island in 1817, and I think it was then in operation, 
and that operations were begun before then. I don’t know from 
personal knowledge how it burnt down; I have heard that the para¬ 
pet was covered with a wooden roof, and got ignited from a 
stove pipe that passed up from Lieutenant Tuttle’s room. After 
the fort was burnt, all the new quarters were commenced under 
Major Del afield. The government had built ail the buildings in 
the island; there are no private individuals who have built any. A 
declaration in ejectment was served on me in 1833, and I believe 
Colonel Thompson was the person who served it—he was there, I 
know, with some writ. I don’t know James Low, nor who was 
the sheriff of Salem in 1833. I was on the island from May, 1833. 
Mr. Behling was on it in 1833, as assistant engineer under Major 
De'afield. John Games, William Long, Benjamin Cooper, were 
all there in 1833. ' Mr. Behling is now living, and is an agent for 
Mr. Dupont. In 1836, he w as still assistant engineer, and also in 
1838, when the writ was served. In the absence of Captain Dela- 
field he had full charge. 

In 1838, when the marshal came with the writ, no officer was 
there; Lieutenant Meigs gave orders. When Mr. Hudson’s lease 
was brought to me to sign, I refused, and said that I would sooner 
be turned*out. Mr. Hudson gave me his word of honor that if I 
signed it and tKe lease was not approved by Lieutenant Meigs, it 


48 


[ 81 ] 

should be destroyed. I then signed it and despatched a special 
messenger to Lieutenant Meigs, informing him. He approved my 
act. After I signed it I remained till writ of hab. fac. pos. came 
from Delaware." I.was on the island and a man named Edward 
Powers; only two families. He was discharged by Lieutenant 
Harrison, but did not leave the island. When the writ of posses¬ 
sion was served from Delaware, I left the island and stayed away 
six weeks. My family remained upon it. I was in the employ of 
the United States, on wages, in charge of the public property. 
The declaration in ejectment was served on all the inhabitants of 
the tenements. I was one. When the writ of hab. fac. pos. came, 
there were only two families; I was there. I signed a paper in 
Mr. Roger’s office, which gave me possession of the island. This 
paper was signed in Delaware. We never moved off our family 
after the writ of possession from New Jersey was served. During 
all the time, from the beginning of the Delaware suit, until the 
writ of hab. fac. pos. under it was served on me, and until last 
October, I was in the employ of the United States and paid by the 
United States, and so I was when I signed the paper to Mr. Hud¬ 
son. I was taxed and voted in Delaware. I never knew any one 
upon the island to vote or to be taxed in Jersey, unless it was labor¬ 
ing man working at day’s work and having his family in Jersey. 
Nobody ever disputed my right, except in a jocular way. I voted 
in Red Lion hundred, in St. Georges, on the canal. I voted there 
in 1846. I first voted in Delaware three or four or five years after 
I went to the island. I believe there was process served on me 
from Wilmington, by Wilson. I think I have that paper in my 
possession. I have seen public officers serve process from Dela¬ 
ware; constables who came there. I never voted in Delaware 
prior to 1838, nor at the general election of 1840. I could not 
leave the island. I had two or three hundred men under my 
charge. I was not requested or advised by any one, agent, officer 
of the United States, or other person, to go and vote in Delaware. 
I votbd because I paid a tax and supposed I had a right to vote. I 
do not remember when I first voted or was first taxed. I did not 
vote before I was taxed. I did not vote so early as 1833, for my 
family at that time resided in Philadelphia. My wages never 
stopped from the time I was employed by Major Delafield, till the 
past month. I voted the first election after I was regularly taxed. 
I never knew of a constable coming from Salem to collect money. 
Fishermen frequently made the island a harbor, and I remember, 
two fishermen came there, one had broken the others head in the 
bay. A constable came after one of them from Salem, for assault 
and battery. This was on Sunday. He served the process on him. 
He had an instrument of writing; at least I supposed he had. He 
had a pistol, which was all the process I saw. The fisherman said 
he would go if a regular process came after him from Delaware, 
but that he did not acknowledge the jurisdiction of Jersey on the 
Patch. He did not go with the constable, who went away without 
him and never returned after him or took him from the island. 
They served me with a bill of taxes from New Jersey, in the fall of 


49 


[ 21 ] 

1843. I refused to pay it. The amount was $18 or $20, a personal tax 
and a land tax. I never knew of any such demand prior to that 
time or since. It was the first bill of the sort ever presented; 
none other since. I did not pay it; I paid my taxes in Delaware., 
when demanded. If I met the collector and he asked me for my 
taxes, I paid him, if 1 had the money. 

Adjourned till to-morrow at 10 o’clock, when present as before, 

John Stul, having been duly sworn by Mr. Alderman Cook, a 
witness of the United States, says: I am 67‘years old. I reside in 
this city, and have done so principally for 46 or 47 years. I for¬ 
merly resided in Delaware; did so from 1799 to 1800, at New 
Castle. I was also there during two yellow fevers. While resi¬ 
ding at New Castle, as shopkeeper, (I kept a small store there,) I had 
occasion, in July or August, 1800, to serve process on a man who 
was boatsman of the United States ship Scammon. I took the ad¬ 
vice of Geo. Read, esq. He told me to follow the man as far as 
low water mark on the Jersey shore, but no further. I went over 
after him, and caught him at the end of the wharf in his boat as he 
was going to shore. He was outside of low water mark at the 
wharf. I brought him back to New Castle, and he gave me an 
order to the officer at Washington for his back wages. I sent this 
order on to Washington, and got the money for it. Geo. Read, 
esq., the counsel to whom, as I have said, I applied for advice in 
the matters, was a lawyer of eminence in Delaware—great eminence, 
I should think. He was district attorney of the United States, I 
believe. There were people who professed to know how to keep 
clear; they would steer close to the Jersey shore to avoid process. 
I do not profess to be a lawyer. Our custom was, in suing people, al¬ 
ways to take process from Delaware. We never got any from 
Jersey. I was on terms of intimacy with the sheriff; boarded in his 
house a part of the time. Our instructions were never to go be¬ 
yond the Jersey low water mark. I never knew any dispute about 
the jurisdiction. It was the well settled opinion in them days that 
the jurisdiction extended to low water mark on the Jersey shore. 
The man whom I arrested never sued me for trespass. He had a 
a lawyer with him; Mr. Brown, perhaps, of this city, then a young 
man; or it might have been a student of Mr. Bayard’s. 

The arrest was an July or August, 1800, directly opposite to New 
Castle, or a little higbfll up. I am certain of the year. Francis 

-kept the ferry at New Castle. I don’t remember the man 

who kept it at New Jersey. The ferry was from New Castle across, 
and back. It was licensed by Delaware. 

Mr. Bibb now offers a chart of “ Virginia, Maryland, Pennsyl¬ 
vania, east and west Jersey.” This chart was obviously from the 
same plate as that one from the English Pilot offered by Mr. 
Clayton. It is an edition of the English Pilot, published in 1732; 
also offers a copy of Fisher’s map, from the same plate as the 
other, only out of an edition of the 2nd part of the North American 
Pilot, published at London in 1800. 

4 



50 


[ 21 ] 

Mr. Bibb now oilers certified copies from the Department of 
War, of the following letters, all of which appear more at large on 
exhibit V., accompanying these minutes. 

J. T. Hudson to the Secretary at War , November 26, 1838 

J. T. Hudson to the Secretary at War , no date. 

M. C. Meiggs to Brigadier General C. Gratiot , chief engineer, 
December 11, 1838. 

Enclosing memorandum of lease, December 8, 1838. 

F. A. Smith , captain and assistant chief engineer to Lieutenant 
M. C , Meiggs, Decernber 13, 1838. 

Jos. G. Totten , colonel and chief engineer, to Hon. W. L. 
Marcy , November 6, 1847. 

This last letter appeared to be an original letter. 

Title papers. —A copy, certified under the hand and seal or the 
surveyor general of New Jersey, November 10, 1847, to be u a true 
copy of the records entered in the book T, folio 207, 208, now re¬ 
maining at the office of the surveyor general of the State of New 
Jersey, at the city of Burlington.” It declares that by virtue of 
a warrant from the council of proprietors of West Jersey, dated 
November 4, 1743, ordering the surveyor general to survey to 
Samuel Atkinson and wife 600 acres of unappropriated land any¬ 
where in the western division of New Jersey, below the falls of 
Trenton; and by virtue of a conveyance, April 6, 1744, from 
Samuel Atkinson and wife, to John Robbins of the whole warrant; 
and of a conveyance, October 6, 1784, from Elias Robbins, eldest 
son and heir-at-law of John Robbins, to Edward Hall of 62J acres, 
and one-twentieth of said warrant. By virtue 'also of another 
warrant of 7 August, 1782, requiring survey of 5,000 acres of un¬ 
appropriated land , anywhere in the western division of New Jer¬ 
sey, unto Daniel Ellis; and by virtue of a conveyance from Daniel 
Ellis to John Lawrence, of 600 acres thereof, the 8th of August, 
1783; and by virtue of conveyance from John Lawrence, the 1st 
September, 1784, to Edward and Clement Hall, of 126 acres, a re¬ 
turn of survey, 8th October, 1784, for said Edward and Clement 
Hall, had been made of an island in the river Delaware, called the 
Pea Patch, situate in the county of Salem, about one mile west 
from Finn’s point in Penn’s neck, and is about west of the mouth 
of Salem creek, and a little above the Rudy point; also nearly 
southeast by east from Hamburg about 2^miles, and about south 
half a point west, from the tile house at Newcastle, distant about 
4| miles, giving points and courses, Containing 178 acres of 
marsh , sand bank , and mud flats , and allowance for roads A This 
paper bears date 27 October, 1784, and the record adds : Novem¬ 
ber 3, 1784, inspected and approved by the council of proprietors, 
and ordered to be recorded.” 

Mr. Clayton objected to the admission in evidence of this paper. 
After argument on both sides, it was admitted without prejudice, 
and open to all questions. 

A copy certified, under the hand of the clerk and seal of the 
court of common pleas, to be a true copy of a deed from Edward 


51 


[ 21 ] 

Hall and wile, to Henry Gale, as the same is recorded in the clerk’s 
office. The deed is dated, February 27, 1813, and in consideration 
of $500, conveys “one-half of an island commonly called the Pea 
Patch island.” 

A true copy from the record, under the hand and seal of the sur¬ 
rogate of Salem county, containing proceedings in the orphan’s 
court, concluding with a decree that the administrator sell the 
other moiety, belonging to the estate of Clement Hall, deceased. 
This decree appears to have been made November, 1811. 

Certified copy in like form as the 1st deed to Gale, of deed, 
dated 27 February, 1813, Rebecca Hall, administratrix, Morris 
Hall and Morris Hall, jr., administrators to Henry Gale, recites 
the proceedings and the decree in the orphan’s court, and in con¬ 
sideration of $500, conveys to Henry Gale the moiety of the 
island ordered to be sold. 

An exemplification of the proceedings, judgment and execution, 
as the same remains on record in the office of the inferior court of 
common pleas of the county of Salem, in the case of Samuel L. 
James and John Hall, executors of Edmund Hall, deceased, against 
Henry Gale, in an action of debt, on bond. The certificate of copy 
is dated 30th October, 1847. This paper contains a copy of a fi. 
fa., dated September 20, 1831, (leviable upon real estate in default 
of personal,) but contains no return to this fi. fa. 

§ An exemplification of certain proceedings between the same par¬ 
ties, in the supreme court of New Jersey, concluding with the 
return of Isaac Johnson, sheriff, dated February 28, 1831, that he 
had taken and levied on all the right of Henry Gale of, in and to 
all that certain island, tract of land and premises on which Fort 
Delaware is erected, containing 75 acres, &c. All subject to prior 
executions. Exemplification dated November 2, 1847. 

A true copy, from the records of th^ clerk’s office of Salem 
county, New Jersey, of a deed from Isaac Johnson, former sheriff 
of the county of Salem, to Jonathan Trumbull Hudson, esq., dated 
February 25, 1837. This deed conveys the whole island to Jona¬ 
than Trumbull Hudson, as the property of Henry Gale, for the sum 
of $10,700. 

Deed: J. T. Hudson to Jam%s Humphrey, April 5, 1844, in con¬ 
sideration of $5, and for other good considerations, conveys 
the whole island to James Humphrey. 

In these different conveyances of the island, it is generally de¬ 
scribed as situated in the Delaware river , in the county of Salem , 
State of JVew Jersey. 

A letter from Wm. L. Marcy ) Secretary of War , to Thomas Dick¬ 
inson, jr., esq., clerk of Salem county , JV\ J., dated War Depart¬ 
ment, Washington, Oct. 7,1847, in which Mr. Marcy says: “I enclose 
for record in your county a deed from James Humphrey to the 
United States. When recorded, please return it to this department, 
with a note of the fee due on that account.” To this letter was 
appended an affidavit, October 30, 1847, of Thomas Dickinson, jr., 
that the said deed has been recorded in the clerk’s office of the 


% 


52 


[ 21 ] 

county of Salem, in the State of New Jersey, as directed in the said 
letter. 

Certified copies, under the hand of the Secretary of War and 

seal of his office, (certificate dated - November, 1847,) of the 

following letters, from the records of the said department: , 

War Department, May 17, 1813. 

Dear Sir: Will it not be possible to get your common councils, 
or committees of public safety, to apply fifteen or twenty thousand 
dollars to the erection of a work on the Pea Patch? This would 
be a substantial protection for Philadelphia, Wilmington and New¬ 
castle. If they will do it, I will find them an engineer w T ho shall 
keep himself within the limits of the fund; and if he exceeds th<m, 
the United States shall pay the difference. I will do more; I will 
repay the whole sum so soon as the United States can obtain the 
private right to the soil and jurisdiction of the island, and of a few 
acres on the Delaware shore for a covering or auxiliary work. 

I am, &c., 

JOHN ARMSTRONG. 

Brigadier General Bloomfield. 

War Department, May 25, 1813. 

Sir: You will order Lieutenant Thayer to Philadelphia to repoft 
to General Bloomfield, and to transmit to this department a plan 
and estimate of such fortification as the general may propose to 
erect on the island in the Delaware, called the Pea Patch. 

I am, &c., 

JOHN ARMSTRONG. 

Colonel Jos. G. Swift. 

War Department, May 26, 1813. 

Sir: Your letter of the 22d instant has been received. An officer 
of engineers has been ordered to report to you immediately. He 
will make a plan and estimate for the w r orks at the Pea Patch. 

I am, &c., 

JOHN ARMSTRONG. 

Brigadier General Bloomfield. 

War Department, March 15, 1814. 

Sir: You will please to transmit an estimate of the expense 
of erecting the towers, referred to in your report of the 5th instant, 
and designate an officer of engineers to superintend the works in 
the Delaware. 

g 

I am, &c., 

JOHN ARMSTRONG. 

Brigadier General Swift, JYew York. 

War Department, July 1, 1814. 

Gentlemen: On the two subjects, in relation to which you did 
me the honor to confer with me yesterday, I beg leave to state that 



53 


[ 21 ] 

the authority of the commanding general is competent to repair and 
keep in good condition Fort Mifflin, its guns, gun carriages and 
implements. 

That a plan for fortifying the Delaware at the island called the 
Pea Patch, and the point on the western shore of that river, 
called Newbold’s, by placing on each of them a martello tower, 
was approved in April last; that this work should be immediately 
commenced, and also a small covering work at Red-bank. 

It is expected that the funds necessary for the accomplishment 
of these objects will be advanced by the corporation of Philadel¬ 
phia, to be refunded by the department within one year after the 
termination of the present w r ar, with interest at the rate of 6 per 
cent, per annum. 

I am, &c., 

JOHN ARMSTRONG. 

Messrs. Lieper, &c., Philadelphia. 


War Department, 

August 7, 1814. 

Sir: You will instruct Captain Babcock to submit to the corpo¬ 
ration a plan of enlarged works at the Pea Patch, with an estimate 
of the cost. This ought not to interrupt the present plan of a 
tower. It will protect the large work while making, and serve as 
its citadel when made. 

I am, &c., 

JOHN ARMSTRONG. 

General Bloomfield. 


War Department, 

August 31, 1814. 

Sir: In a letter of this date to the committee of safety at Phila¬ 
delphia, they are informed that you will communicate with them 
relative to the defence of that place, in which it seems advisable to 
concur in their measures as far as may be practicable. General 
Swift will repair to Philadelphia and advise with you and the cor¬ 
poration, and give instructions for erecting such works as they may 
approve at the Pea Patch. 

I am, &c., &c. 

JAMES MONROE. 

General Bloomfield, 

Commanding at Philadelphia. 


War Dapartment, • 
December 23, 1814 . 

This department having been informed that if assurances were 
given to the corporation of Wilmington, that all moneys advanced 
to it by the United States should be confined in their expenditure 
to completing the works erecting on the Pea Patch, it would ad¬ 
vance willingly and liberally, I have now the honor of assuring 
you that whatever advances are thus made shall be exclusively 


54 


[ 21 ] 

confined to that object, and that an interest of 6 per cent, per -an¬ 
num will be allowed, until the sums so advanced are paid. t 

JAMES MONROE. 

Corporation of Wilmington, Delaware . 

War Department, 

December 23, 1814. 

Sir: Understanding that it is your wish to aid the views of the 
general government by loans of money, on the condition that such 
loans will be confined exclusively to completing the works erect¬ 
ing on the Pea Patch, I now make you the assurance that this con¬ 
dition will be respected to the extent of the sum loaned, and that 
an interest of 6 per cent, per annum will be allowed on them until 
repaid. 

JAMES MONROE. 

War Department, 

November 30, 1838. 

Sir: Your letter oj - date , respecting your purpose to take 

possession of the Pea Patch island , has been received. 

It is my intention to again present the subject to the considera¬ 
tion of Congress , and to urge their definitive action upon it. I can 
see no good likely to result from the step you propose to take , and 
would , therefore , advise you to refrain from all legal proceedings 
till it can be known what will probably be the action of Congress. 

Very respectfully, your most obedient servant, 

J. R. POINSETT. 

% 

J. T. Hudson, Esq., 

City of New York. 

Mr. Bibb cites acts of New Jersey, passed March 27, 1719, 
showing the establishment of East and West Jerseys; and the es¬ 
tablishment of the surveyors* general offices, in which offices, re¬ 
spectively, shall be carefully entered and kept the surveys of all 
lands which shall hereafter be made within this province; and such 
entries shall be of record, and may be pleaded as evidence in any 
of his Majesty’s courts of judicature within this province.” This 
act found on the “Statutes of the State of New Jersey, revised,” 
&c. Trenton, 1847. 

Mr. Bibb offers two papers under the hand and seal of the clerk 
. of the circuit court of the United States, New Jersey. The first 
purporting to be a copy of proceedings in circuit court of the 
United States for the third circuit in the New Jersey district, in the 
suit of John Den ex dem. Henry Gales vs. Henry Behling. This 
paper, which had a variety of certificates to various parts of it, as, 
first, of a true copy of the pleadings in the cause; second, of u a 
true copy of the evidence taken and filed in the cause;” third, a 
true copy of the minutes of said court; fourth, true copies of the 
depositions referred to on the minutes of the trial of the cause, 
was no ■where certified to be a true copy of the record. The first 



55 [ 21 ] 

of the certificates was dated October 27, 1847. The remaining 
three, October 28, 1847. 

The second paper was certified, in like form as the first, to be a 
true copy ot the declaration in ejectment, together with the notice 
to the tenants in possession, and the service thereof. 

Mr. Bayard and Mr. Clayton objected to the reception of these 
papers. Mr. Bibb contended that the depositions were receivable, 
because Mr. Behling was in the employment of this United States, 
and therefore the parties in that suit were the same as the parties 
in this; that, accordingly, the witnesses whose depositions he 
offered to read, being dead, their depositions might now be used. 

Mr. Arbitrator, after an argument had been made on both sides, 
said that Mr. Behling was not a tenant, under the United States, of 
the Pea Patch, nor anything more than a person employed there to 
superintend the government work. He also remarked that it was 
difficult to understand how, if he had been a formal tenant of the 
United States, the circuit court of New Jersey, or any court, could 
*' entertain a jurisdiction of a case which would make the United 
States a party. The arbitrator refused to admit the depositions. 

The clerk understood the counsel of the United States not to 
make objection to the reception of the papers as evidence of verdict 
and judgment , this evidence being given under a reservation of a 
right on their part to object to its competency and effect, and sub¬ 
ject also to every legal exception. 

H on. Thomas Lenickson, a witness of Mr. Humphrey, sworn by 
Alderman Cook, says: I have resided for my whole life in Salem 
county, and for the last 50 years in the town of Salem. I have 
been acquainted with the Pea Patch island upwards of 40 years; 
on it repeatedly. I cannot state the date of my first visit, as early 
as 1810; I think earlier. Nobody lived on it then. I knew Dr. 
Gale. I saw him on the island in the spring, I think, of 1813. He 
was employed with a gang of hands fishing with a large net for 
shad. There was erected there a hut or fishing cabin, and I was in 
it; newly built, I think, for, though I had passed the island before, 

I don’t remember to have ever seen any building on it prior to that 
time. There was no bwilding on the island but this shanty. I 
don’t think I was on the island again while Dr. Gale was on it. 

I conversed with Dr. Gale on the island; bought fish of him that 
day. He had 12 hands, I suppose, besides his son-in-law. I don’t 
remember specifically; but make no doubt he must have been at 
Salem, and I must have seen him there; no doubt. I was on the 
island in 1842 or 1843. I should think myself unable to judge 
which side it is nearest to. Any measurement of the distance by • 
the eye is likely to be inaccurate, and I have never seen it mea¬ 
sured. I know that the distance of the Jersey shore varies very 
much. I own a farm opposite the Pea Patch; a good deal of land 
there. I can speak of the wash for 20 years, not for 40. Since 
October, 1846, 30 feet of a bank eight feet high have been washed 
away. More or less is washed away nearly every year. Within 
20 years it has washed more than 50 yards. 


56 


[ 21 ] 

I was first on island in 1810, perhaps gunning. No habitation 
then on it. I found Dr. Gale on it in spring of 1813, shad fishing 
season. I think I was not on it more than once then, and may 
have remained a couple of hours. The house was rather larger 
than a* common fishing hut, and may have been 15, 16, 17, or 18 
feet. I don’t know when it went down. My impression is—I don’t 
recollect distinctly—but I believe it was standing after United 
States took possession. I was on island immediately after United 
States began to erect fortifications. Government began to bank, I 
believe, immediately after driving poles, and before. The shanty, 
as I have said, was temporary only. I should suppose it would 
have cost $100 to erect it. If made with rough boards on roof in¬ 
stead of shingles, not so much. The storm of October, 1846, was 
quite unprecedented. I never knew any so violent before. It de¬ 
stroyed all the banks on our river. 

r 

Aulay M. Park, a witness of Mr. Humphrey, sworn by Alderman 
Cook, says: I lived on the Pea Patch over six years and a half, be¬ 
ginning 1818. I was under Captain Babcock, the superintendent 
of the building of Fort Delaware. .There was a writ of ejectment 
served on me in the absence of the commanding officer. I was in 
a boat passing from New' Castle lo Fort Delaware. The sheriff 
came alongside and served me. I received the w r rit and sent it on 
to Washington. 

The main ship channel is the w'est. It is invariably taken, the 
west I mean, by all large vessels. I never saw any ship or square 
rigged vessel beating through the east. I once saw the Woodrop 
Sims pass up or dow'n, very light and with a full tide. I should 
think this might have been in 1821. She steered about the middle 
of the river, opposite the island, and till she got above it. I don’t 
know W'hether she w r as loaded or light. She had the appearance of 
a light vessel. I am not. sure that it w'as the Woodrop Sims, but 
itywas the largest vessel that I ever saw r go through, and I remem¬ 
ber it W'as a matter of w'onder to all of us that she w'ent that way. 

The process of ejectment that I have mentioned was served on 
me in 1819 or 20. 

i 

George T. Boon, a witness of Mr. Humphrey, having been duly 
SW T orn, deposeth and says, I have been a navigator or ow'ner of ves¬ 
sels on Delaware for about tw'enty-five years. I sailed part of the 
time with my father, as captain of a Salem brig. In 1825, 1 com¬ 
manded a vessel from Salem to Philadelphia, draught about eight feet 
at most. In going from Salem we w T ent invariably on east, on ac¬ 
count of being much shorter. Passage was very difficult for large 
vessels, and w r as so for even ours. It was a very rare thing to see 
a’large vessel pass east. The w'est w r as invariably considered the 
main channel. For tw'elve years past I have passed the Pea Patch 
daily in steamboat, for thirteen years prior I passed it once a v'eek 
in a packet. In all that time I never saw' a square rigged vessel 
beat through the west. I have seen them go through on a full tide 
and with a fair wind. There is a bar above puts out, called the 


5 ? 


[ 21 ] 

Horse Shoe, or bulkhead bar. It has increased of late, and is cer¬ 
tainly nearer the Pea Patch than it was some years ago. The 
sloop channel is between the Horse Shoe and the Jersey shore. 
Narrow and difficult to pass. I was near to the ship Pennsylvania 
when she went down; she went directly under wharf on east side, 
quite near shore, perhaps within 150 yards. I was in a steamboat. 
Such a navigation, I should say, was attended with great difficulty. 
I have often stopped at the Pea Patch on my way down, and have 
often towed Liverpool packets; I never took one east. The west 
channel has gone nearer to Delaware shore than it was, nearer than 
I ever knew it. I should think the island was nearer Jersey. 
There are shoals ‘from Salem creek, which extend two or three 
miles from Salem creek, above and below. It is estimated to be 
seven miles from Salem creek to Delaware city. 

We were at lower point of island when Pennsylvania went 
through. We might have been a fourth or half mile from her on 
a direct line. The* north end of island is nearer Jersey, in conse¬ 
quence of Finn’s point putting out into the river. I never measur¬ 
ed the distance; it has that appearance. I have not sounded abreast 
of Pea Patch on east side since I have been on my steamboat. It 
is quite shallow' there out from shore. It must be twenty feet on 
channel or the Pennsylvania could not have passed: I pass along 
there only occasionally. I have sounded north of island lately. 
The west is not far from Delaware shore, perhaps fourth of a mile 
opposite Pea Patch; opposite Delaware city it runs closer in. I 
can’t tell how' wide exactly the w r est channel is; though I have 
sounded it. In neighborhood of Pea Patch the Jersey shore chan¬ 
nel was quite narrow twelve years ago. There is no Goose island 
channel that I know of. There is a channel inside of the Horse 
Shoe; that channel I know all about it. This eastern channel runs 
close into Jersey shore, not more than fourth mile at furthest. It 
is not more than fourteen feet at ordinary tide, may, in places, be 
deeper. I can’t say wffien I sounded it last, but I sound it when¬ 
ever necessary. We run through there every day: and I sounded 
it when the last fog was, if you can tell. Fourteen feet is as much 
as you can steer through there, and it requires nice steering to carry 
so much as that. 

Mr. Bayard reads the following letter from H. D. Gilpin, esq., 
Solicitor of the Treasury, to Mr Hudson. 

v 

Office of the Solicitor of the Treasury, 

July 11, 1839. 

Sir: I had the honor to receive your letter of the 27th June, in 
reply to mine of the 17th; and I have been in expectation of receiv¬ 
ing the further communication which you promise, after consulting 
your counsel. The desire of the United States in the proceedings 
on their pnrt being, as I stated to you, to try the question of title 
vcith as little delay as possible; and especially so as to bring it, if 
necessary, before the Supreme Court at their next session; and this 
being also, as I understood from you, your own wish, I have been 


\ 


58 


[ 21 ] 

expecting that you would direct an appearance to the ejectment in 
the usual mode, upon which I might instruct the district attorney 
to consent to the judgment’s being opened, and the case put at is¬ 
sue with as little delay as possible. This I still hope to do at a 
very early day. 

In the meantime no measures have been adopted to take posses¬ 
sion under the judgment, nor was it intended to resort to them if 
the case was put-in train for a judicial decision on the question of 
title; it being expected that the property should remain in its 
present condition, and the articles thereon which belong to the 
United States should not be interfered with. I have, however, re¬ 
ceived from the Secretary of War, a letter dated the 6th instant, 
written by Mr. Behlin, the agent of the engineer department, in 
which he states that Mr. Cocklin, the overseer at fort Delaware, has 
informed him that your attorney came on the island on the 2d in¬ 
stant, and stated his intention of taking away the hay; and also 
intimated that he would take the bricks and other materials on the 
island. Of course, during the pendency of legal proceedings no in¬ 
terference of this kind could be allowed; and the great value of 
the United States on the island will make it necessary, should such 
be attempted, at once to take possession under the judgment. I 
shall, accordingly, give instructions to the district attorney in Del¬ 
aware to have a writ of possession issued, should any such attempt 
be made before I am informed by you of the course you propose to 
adopt, but not otherwise. 

I have no doubt that a satisfactory arrangement for trying the 
title and preserving the rights of both parties unimpaired, as they 
mutually desire, can be made; but you will perceive, from the cir¬ 
cumstances I have mentioned, the necessity of this being done as 
speedily as possible, and of my desiring, therefore, an early com¬ 
munication from you on the subject. 

Very respectfully, yours, 

. A H. D. GILPIN, 

Solicitor of the Treasury. 

John T. Hudson, Esq., 

No. 65 Broadway , New York. 

Adjourned until to-morrow, November 13, 1847—when present 
as before. 

Mr. Bibb puts in evidence a compilation of the public laws of 
the State ot New Jersey, passed since the revision in the year 1820. 
Arranged and published under the authority of the legislature, by 
Josiah Harrison, Camden. Printed by J. Harrison, 1833. He read 
from vol. II., page 366 — u An act vesting in Henry Gale, his heirs 
and assigns, all the right and title of the State of New Jersey, of, 
in, and to, an island called the ‘Pea Patch,’ situate in the river 
Delaware, in the county of Salem, and State of New Jersey.” 

Passed the 24th of November, 1831. 

Whereas it hath been represented to the legislature, that Edward 
Hall and Clement Hall became seized and possessed of the said 


59 


[ 21 ] 

% 

island, by virtue of a survey bearing date the 27th day of October, 
1784, which was duly approved by the council of proprietors of 
West Jersey, on the 3d day of November, 1784, and duly recorded 
in the surveyor generaPs office of the said western division 
of New Jersey. And whereas the said Henry Gale, by divers 
mesne conveyances, under the said Edward Hall and Clement Hall, 
hath become seized and possessed of the same: And whereas it 
hath been suggested that the State of New Jersey hath some title 
thereto, and by reason thereof doubts have arisen concerning the 
title of the said Henry Gale, therefore , 

Be it enacted , #c., That for divers good considerations moving 
thereunto, and also for and in consideration of the sum of one dol¬ 
lar, to the treasury of the State of New Jersey well and truly paid 
by the said Henry Gale, the receipt whereof w T e hereby acknow¬ 
ledge, all the right and title of the said State of New Jersey to the 
said island called the Pea Patch , situate in the river Delaware , in 
,/he township of Lower Penn's Neck , in the county of Salem , and 
State of New Jersey , as mentioned and described in the beforemen- 
tioned survey , with all and singular the appurtenances , and the 
same are hereby granted and conveyed to the said Henry Gale , his 
heirs and assigns forever: And that the same shall forever be 
vested in the said Henry Gale , his heirs and assigns , in as full and 
ample a manner as the State of New Jersey hath right and title to 
grant and convey the same: Reserving, however, to the State of 
New Jersey the full right of jurisdiction and sovereignty in and 
over the same, as fully and amply, to all intents and purposes, as 
if this act had not been passed.” 

Learning & Spicer’s Law’s, from 588 to 617; a variety of laws 
connected with the surrender (page 609) from the proprietors of 
East and West Jersey, of their pretended rights of government to 
his Majesty. April 15, 1702; with the queen’s acceptance, page 
647, of the same, April 17, 1702. At page 606, to show that the 
surrender was understood in England to be u upon such terms and 
conditions as are requisite for preservation of their proprieties and 
civil interests. 

At 607, to show same thing: the proprietors’ articles of condi¬ 
tion being, as is stated by the English board of trade, u only to se¬ 
cure their right in such things as are matters of property .” At 
page 614, language of surrender confined to powers of govern¬ 
ment. 

628, section 36. Instructions to Lord Cornbury, the first new 
governor, in which, u for settling the properties and possessions of 
all people concerned therein , he is to propose to the general assem¬ 
bly the passing of such acts whereby the right and property of the 
proprietors to the soil may be confirmed to them.” 

Page 629, section 38. To show that proprietors were to appoint 
surveyors and other persons to survey land and record surveys; 
also to lay duties upon exports and imports. 

Thomas Clark, a witness of the United States, having been duly 
sworn by Mr. Alderman Cook, deposeth and saith: I was in the 
service of the United States in 1813—’14 as captain of topographi- 


60 


[ 21 ] 

cal engineers. I was ordered by the commanding general of the 
district to take possession of the island, and prepare it for fortifi¬ 
cation; I did this in the winter of 1814. I had previously pre¬ 
pared a block-house at Kensington. I landed on the island, I think, 
on Christmas day, 1814; at the time I landed there was no one in 
possession, -and no vestige of any building; it was flooded every 
high tide. I was, as I have said, at this time in the military ser¬ 
vice of the United States as captain of topographical engineers. 
The witness produces a paper: 

Adjutant General’s Office, 
Philadelphia , Oct. 19, 1814. 

[General Order.] 

Captain Thomas Clark, of the corps of topographical engineers, 
will proceed to Newcastle, Delaware, and report himself to Col¬ 
onel Irvine, commanding at that station, whom he is to accompany 
on a reconnoissance of the island called the Pea Patch, and the 
vicinity; and, having performed that duty, will return to head¬ 
quarters. 

By order of Major General Gaines: 

J. N. BARKER, 
Asst. Adjt. Gen. 

Captain Clark will make a detail of four men of Colonel Irvine’s 
command, to attend him on the expedition. 

J. N. BARKER, A. A. G. 

The witness continues: The above was an order to report myself. 
After I got to the island I proceeded to make a wharf, or landing, 
and to embank as well as I could at that season of the year. I was 
on the island from Christmas day, 1814, till somewhere in June, 
1816, as far as my memory serves me. I never drove any body 
away; there w T as nobody there to be driven away. Nobody claimed 
possession of the island, or asked me at all by w T hat title I was 
there; crows were the only inhabitants of the island. 

I had soldiers with me, also some workmen; perhaps a hundred 
soldiers, and thirty or forty workmen. I had taken down a tem¬ 
porary block-house, to be ready in the spring; I mean by block¬ 
house, a house made of large timbers, as large as we could join 
together, filled in w T ith earth. We took down no shanty; we took 
down hulks, dismasted vessels. The order which I have referred 
to, and dated October 19, 1814, is not the order under which I 
went down in December of that year. I went down under another 
order, which is as follows: 


Adjutant General’s Office, 

4 th Military district , Philadelphia , Dec. 11, 1814. 

[General Or'ders.] 

Captain Clark will continue to act as engineer, in constructing 
the works of the Pea Patch, and will have command thereof, and 
of the garrison, until the island is completely fortified. 

He will make requisitions from the United States for such men 


61 


\ 


[ 21 ] 


as may be necessary for the construction and defence of the work, 
and authorized (sic) to employ such other workmen as may be re¬ 
quired, and a specific intendant of workmen, if necessary, and to 
procure such materials and contingent articles as he may find requi¬ 
site for the progress of the work. 

Captain Clark w T ill proceed himself to the Pea Patch, as soon as 
his attendance is necessary. 

By order of Major General Gaines, commanding: 

CHARLES J. NOURSE, 

Asst. Adjt. Gen. U. S. A. 


I erected habitations for the soldiers early in the spring. Indeed, 
I commenced in the winter to build huts, light habitations, out of 
boards, &,c. 

The evidence is now closed, each party reserving the right to 
produce a map, and Mr. Humphrey to examine a witness. 

Adjourned till November 15, 1847, at this same place, 10 o’clock 
a. m. 


I 

November 15, 1847. 

Parties and council meet as before, and Mr. Clayton, on behalf 
of the United States, produces a map called for on the other side. 
u A delineator of the Pea Patch on the Delaware river, with the 
adjacent shores and depth of the surrounding water in fathoms, 
from actual survey and soundings in 1819.” 

Adjourned until Tuesday, November 23, 1847, at 11 o’clock, a. 
m., in this place. * 


November, 23, 1847. 

Met as before and adjourned to the Hall of Independence, which 
the city of Philadelphia had politely tendered to the arbitrator. 

Mr. Bayard, on behalf of the United States, produces a com¬ 
mission from John Penn, Richard Penn, and Thomas Penn, proprie¬ 
taries to the honorable Patrick Gordon, deputy governor, and 
others, dated May 12, 1732. It recites the difficulties between 
Penns and Lord Baltimore, in relation to the boundaries of their 
grants, and that certain boundaries had been agreed upon between 
them, as laid down upon a map in the margin of the commission. 
Mr. Bayard stated that the attempt thus to settle the boundary 
proved unsuccessful, and that it was not settled till Lord Hard- 
wicke’s decree in Penn vs. Baltimore, reported by the elder Yesey, 
vol. i. 444. 

Adjourned to meet in this place Saturday next, November 27, at 
10 o’clock. 


I 




[ 21 ] 


62 


% Saturday, November 17, 1847. 

Met in the Hall of Independence. 

Mr. Bayard, for the United States, began his argument for the 
United States, and continued it on Monday. Mr. Bibb, for the 
defendant, began immediately after him, and continued on Tuesday 
and Wednesday. General Eaton began and finished his argument 
on Thursday. Mr. Clayton began his argument on Thursday, and 
concluded on Friday. 


January 15, 1848. 

The arbitrator, Mr. Sergeant, having directed the secretary to 
give notice to the counsel in the case that he would be ready to 
make his award in the city of Washington, on the 15th of January, 
1848; which notice the secretary did accordingly give, was this 
day attended by the counsel of the parties, viz: John M. Clayton, 
Jas. A. Bayard, and R. H. Gillet, esquires, for the United States, 
and by George M. Bibb, for James Humphrey, at the Senate’s 
committee room upon pensions, where, afte* delivering a written 
opinion, which occupied two hours in reading it, he made his 
award, of which the following is a copy, endorsed on each article 
of submission. 


Award , (in duplicate.) 

Under and by virtue of the foregoing agreement and submis¬ 
sion, having heard the parties by their counsel, their proofs and 
allegations, and duly and deliberately considered the whole matter, 
and weighed the evidence and arguments on both sides, I do 
hereby award that the'title to the Pea Patch island is in the United 
States. 

In witness whereof, I have hereunto set my hand and seal, this 
fifteenth day of January, in the year of our Lord one thousand eight 
hundred and forty-eight, at the city of Washington. 

JOHN SERGEANT, [seal.] 

Witness: 

John Wm. Wallace. 

John M. Clayton. 

Wm. L. Dayton. 

Whereupon I delivered one copy of the award so signed, sealed, 
and witnessed, to John M. Clayton, esq., counsel for the United 
States, and the other copy to George M. Bibb, esq., counsel for 
James Humphrey. 

JOHN WM. WALLACE. 

Washington, D. C., January 15, 1848. 



EXHIBIT No. I. 


IN THE MATTER OF THE PEA PATCH ISLAND. 


To James C. Mansfield , esq ., of Newcastle , in the State of Dela¬ 
ware , greeting: 


Know ye, that in confidence of your prudence and integrity, and 
in conformity with and pursuance of an agreement in regard to the 
settlement, by arbitration, of the title now in dispute of the said 
island, dated the twenty-seventh day of February, A. D. 1847, 
by and between William L. Marcy, Secretary of War, on the part 
of the United States of the one part, and James Humphrey of the 
other, I have appointed you to be a u commissioner” in the said 
matter, and hereby give to you full power and authority to ex¬ 
amine upon their respective oaths or affirmations, on certain in¬ 
terrogatories to be exhibited unto you as well by the said the 
United States as by the said James Humphrey, all person or per¬ 
sons whomsoever that shall be named to you by the said the United 
States, and to reduce their testimony to writing; and, when you 
have so done, you are to send the same to me at Philadelphia, 
together with this writ. 

Witness my hand and seal, this 16th day of October, A. D. one 
thousand eight hundred and forty-seven, at Philadelphia afore¬ 
said. 


Teste: 
John 


JOHN SERGEANT, [seal.] 
W. Wallace, Secretary. 


State of Delaware, ( 

Newcastle county. $ 

To the Hon. John Sergeant: 

The execution of this commission appears by certain schedules 
hereunto annexed and signed by the commissioner. 

JAMES C. MANSFIELD, 

Commissioner. 

November 8, 1847. 

In the matter of the Pea Patch island, before the Hon. John 
Sergeant, of Philadelphia, sole arbitrator, &c. See.: 

I certify that the following “ order” and copy of a interrogato¬ 
ries ” are true copies made by the arbitrator in the case, and of the 
interrogatories filed with me by the counsel of the United States. 

Witness my hand and seal, this the thirteenth day of October, 
A D. 1847, at Philadelphia, in the State of Pennsylvania. 

JOHN WM. WALLACE, [seal.] 

Secretary , fyc. 



[ 21 ] 


64 


OcTOEER I3j 1847. 

On motion of the counsel of the United States, it is ordered by 
the arbitrator, that a commission be issued to James C. Mansfield, 
esq., of Newcastle, in the State of Delaware, to take the depositions 
of witnesses on behalf the United States, on interrogatories filed, 
ex parte , on fifteen days notice to the claimant, or to John H. Eaton, 
esq., his solicitor, and that the secretary of the reference make out 
the commission. 

Interrogatories to be administered to witnesses, to be produced, 
sworn or affirmed, and examined by and before James C. Mansfield, 
esq., commissioner of the town of Newcastle, in the State of Dela¬ 
ware, in the matter now pending before the Hon. John Sergeant, of 
Philadelphia, appointed to decide the title to the Pea Patch island, 
in the river Delaware, between James Humphrey, claimant, and the 
United States of America, now in possession of the said island. 

1. State your age and place of residence. How long have you 
resided in that place? What is and has been your occupation or 
business? ' 

2. Do you know the Pea Patch island, and how long have you 
known it? What was its condition and appearance when you first 
knew it? What was it in 1813, when the United States took pos¬ 
session of it? What was it worth to a private citizen before that or 
at that period? Was it worth the expense of a survey? 

3. Look at the paper hereto annexed, and marked A; relate all 
your knowledge of that paper. Have you ever seen the warrant 
referred to in it? If so, what has. become of that warrant? Why 
was that warrant, after it was laid on the island, not followed by 
possession? Was it a special warrant for the island by name and 
description? Was any survey necessary to perfect the title? Why 
did the owners of the warrant abandon the island. 

4. Have writs or subpoenas been served by officers of Delaware, 
under the courts and justices of Delaware, on persons on that island ? 
Relate all your knowledge herein. 

5. Has the tenant on the island, ever since it was inhabited, been 
assessed and taxed as a citizen of Delaware, and voted in Red Lion 
hundred, in Delaware. 

6. Were you present when General Bloomfield, of New Jersey, 
went on this island, in 1813, to examine it as a site for a fort? Who 
was present? Was any offer made to Dr. Gale, or any other person, 
for his title? Was there any doubt expressed about the title? Did 
any one then doubt the Delaware title? What official positions had 
General Bloomfield held in New Jersey? Did he go to Dover, and 
assist in procuring from the legislature of Delaware the grant of 
the island to the United States? 

7. Has it always been considered and held by the courts, public 
officers, and lawyers of Delaware, that her title extended within a 
twelve miles circle round Newcastle, to low water mark on the 
New Jersey shore? Have you ever heard her title and jurisdiction 
over that part of the river Delaware doubted by any court, or pub¬ 
lic officer, or lawyer, in Delaware? Have writs been often issued 
out of her courts, to seize vessels or persons in all parts of the Dela- 


65 


[ 21 ] 

ware river, within the circle, and was any dispute ever made be¬ 
fore any court against her title and jurisdiction over all such parts] 
Relate all your knowledge herein, with all the circumstances. 

8. Which is the main and deepest ship channel of the Delaware 
river opposite the island] Could a line of battle ship, with her 
armament, pass on any but the Jersey side] Which, also,, is the 
widest and shortest channel] 

9. Are Reedy island and Bombay Hook island in the State of 
Delaware] Have they always been held under the Delaware title, 
and occupied by taxables and voters in Delaware. 

10. Have not writs been issued out of the Delaware courts, and 
served on persons on the Pea Patch island] 

11. Has or has not Delaware always claimed jurisdiction and 
title over the Delaware river, and soil thereof, within the circle to 
low water mark on the Jersey shore] Has she not always exer¬ 
cised that jurisdiction when called upon or asked to do so] 

12. Was any house or building ever erected on the Pea Patch 
island before the United States took possession of it in 1813] Was 
it ever embanked before that] Could any buildings have stood on 
the island before it was embanked in 1813 and 1814] Would not 
the tides and storms have carried away any such building] Was 
any person ever in permanent possession of the island before the 
government took possession of it in 1813] 

13. Have the citizens of Delaware always fished and fowled on 
the river, and used it within the circle, under a claim of right to 
the river existing in the State of Delaware] Has the State passed 
laws, from time to time, to regulate the fisheries on it] Has the 
State ever failed to claim and exercise her jurisdiction and title 
over it to low water mark on the Jersey shore when called on to 
do so, or when there was any cause or occasion for her to do so] 

14. Are the lands in Delaware held under the title of William 
Penn and his heirs] How did the Penn proprietors grant title] 
As a lawyer tracing title in trespass or ejectment back to the orig¬ 
inal claim, how did plaintiffs incept or begin their title papers] 
Was there ever any doubt, in the courts of Delaware, of the justice 
and legality of the Penn title to the lands in the State] Was it 
always a settled maxim with her courts that the Penn title under 
the duke of York was the true title to the lands and waters in Del¬ 
aware] Have you seen a hundred or more, or how many, titles 
incepted in court by the Penn warrants, surve)s, and patents] Are 
or not all the lands and waters in Delaware within the twelve 
miles’ circle held under the Penn title] Relate your knowledge 
and experience herein fully, with your belief and the grounds 
thereof. 

Lastly. Do you know, have you heard, or can you relate any 
other matter or thing which will benefit the United States in this 
case] If so, state it fully. 

J. M. CLAYTON, for United States. 

Endorsed by the clerk: u Filed October 13, 1847, and copy given 
to counsel of the United States on the same day.” 


6G 


[21] 

District of Columbia, 

City and county of Washington , 

In the matter of the United States and James Humphreys con¬ 
cerning the Pea Patch island, before Hon. John Sergeant, arbitrator: 

Joseph H. Waring, of the city and county of Washington, clerk 
in the solicitor’s office, being duly sworn, doth depose and say: 
That, on the 15th day of October, 1847, he called at the dwelling- 
house of Gen. John H. Eaton, and served on the wife of said Eaton 
a copy of the foregoing interrogatories, with a notice of what they 
were endorsed thereon, and signed by the Solicitor of the Treasury; 
that said Eaton keeps no office distinct from his dwelling-house, as 
far as he can learn and as he believes; and that said Eaton’s wife 
informed him that said Eaton was not at home, but had gone to 
Philadelphia. 

JOS. H. WARING. 

# 

Subscribed and sworn before me, October 16, 1847. 

W. CRANCH, Ch. J., D, C. 


Deposition of the honorable Thomas Clayton, late United States 
Senator from Delaware, and formerly chief justice of the State of 
Delaware, a witness produced, duly sworn and examined at his 
house, in the town of Newcastle, on the first day of November, 
in the year of our Lord one thousand eight hundred and forty- 
seven, by virtue of a commission to James C. Mansfield, issued 
by the honorable John Sergeant, arbitrator in regard to the set¬ 
tlement, by arbitration, of the title now in dispute of the Pea 
Patch Island, by and between William L. Marcy, Secretary at 
War, on the part of the United States, of the one part, and 
James Humphrey, of the other part: 

To the first interrogatory, the deponent answers: 

I am seventy years old, and upwards; now reside, and have re¬ 
sided, in the town of Newcastle for fifteen years and upwards, and 
have resided all my life in the State of Delaware. l am by pro¬ 
fession a lawyer. 

To the second interrogatory, the deponent answers: 

I know the Pea Patch island; the first time I was on it was soon 
after the United States took possession of it; they were then en¬ 
deavoring to dig a well, but did not succeed in obtaining fresh 
water. When I first saw it, it was banked. 

To the third interrogatory, the deponent answers: 

I know nothing of the matters inquired of. 

To the fourth interrogatory, the deponent answers: 

I know nothing of the matters inquired of. 

To the fifth interrogatory, the deponent answers: 

I know nothing of the matters inquired of. 

To the sixth interrogatory, the deponent answers: 




67 


[21] 

I was present when General Bloomfield went on the island, in 
1813. In farther answer to this interrogatory, I say, I have un¬ 
derstood that General Bloomfield held the office of governor of 
New Jersey, and was, ex officio, chancellor of the State. I know 
he did go to Dover to prevail on the legislature to make a cession 
of this island to the United States; he was accompanied by two 
gentlemen of the city of Philadelphia, as I understood. I was at 
that time a member of the legislature, and attorney general of the 
State of Delaware, and I had several conversations with General 
Bloomfield on t e subject of the cession of the island to the Uni¬ 
ted States. He seemed anxious to attain his object. He never ex¬ 
pressed any doubt of the title of the State of Delaware to the 
island, nor did he speak of, or hint, at any title in the State of 
New Jersey, or in any one claiming under New Jersey. 

To the seventh interrogatory, the deponent answers: 

It has been held, as far back as my memory goes, by the courts, 
public officers, and lawyers of Delaware, that the title and juris¬ 
diction of the State of Delaware extended to a circle of twelve 
miles around Newcastle, to low water mark on the New Jersey 
shore. I never heard the title or jurisdiction of the State doubted, 
over that part of the river Delaware, by any one, until the claim of 
Doctor Gale was set up to the Pea Patch; and since that, I have 
heard no one in the State of Delaware, lawyer or other, doubt the 
title and jurisdiction in the State. Writs have been issued by the 
courts of Delaware to seize vessels and persons in all parts of the 
river, indiscriminately, within the twelve mile circle, and I never 
knew such a seizure*to be disputed in any court of Delaware, on 
the ground of want of jurisdiction over all such parts of the 
river. 

To the eighth interrogatory, the deponent answers: 

I have no positive knowledge of the matters inquired of in this 
interrogatory; but I refer you to the survey of the river Delaware, 
made by authority of the United States. 

To the ninth interrogatory, the deponent answers: 

I say that Reedy island, and Bombay Hook island, are in the 
State of Delaware. Bombay Hook, properly written, u Boonpries 
Hook”—for I have more than forty years ago examined the title 
to it—was not originally an island; but was made so by an artifi¬ 
cial cut from Duck creek to the bay. 

To the tenth interrogatory, the deponent answers: 

I do not know. 

To the eleventh interrogatory, the deponent answers: 

The State of Delaware has invariably claimed jurisdiction and 
title over the river Delaware within the twelve mile circle, to low 
water mark on the Jersey shore, and the State has exercised that 
jurisdiction when called upon, or asked to do so. 

To the twelfth interrogatory, the deponent answers: 

I have no knowledge. 

To the thirteenth interrogatory, the deponent answers: 

The citizens of the State of Delaware have fished on the river 
Delaware under the title of the State of Delaware to the said riyer; 


G8 


[21] 

the State has passed laws to regulate fisheries on the river. To the 
residue of this interrogatory an answer has already been given. 

To the fourteenth interrogatory, the deponent answers: 

Lands generally in the State of Delaware are held under titles 
from William Penn, and his heirs. At the revolution, there was 
some land ungranted; such land was afterwards granted by the 
State in virtue of the act of 1793. The title from Penn was ob¬ 
tained by virtue of a warrant issued, and a survey by a public 
officer, and a patent issued by the proprietary. The inception of 
the title under the proprietary was by warrant and survey; such 
title, accompanied by possession, was by our courts very early ad¬ 
judged a good title, without the patent; and this early decision of 
the courts has been recognised by acts of assembly of the State. 
I know that the courts, and all the lawyers of the State, have con¬ 
sidered such title under Penn to be good, and such title is recog¬ 
nised by the act of 1793. I have seen many titles incepted in this 
way. 

To the last interrogatory, the deponent answers: 

I have nothing further to say. 

Sworn, examined, and subscribed to, this first day of November, 
A. D., 1847. 

" , ’; J - THOMAS CLAYTON. 

Eighteen hundred and forty-seven, before me, 

JAMES C. MANSFIELD. 


Deposition of Kensey Johns, esq., formerly chief justice of the 
late supreme court of the State of Delaware, afterwards chan¬ 
cellor of the State of Delaware, now a private gentleman, a wit¬ 
ness produced, duly sworn, and examined, at his house, in the 
town of Newcastle, on the second day of November, A. D., 
1847, by virtue of a commission to James C. Mansfield, issued v 
by the Hon. John Sergeant, arbitrator in regard to the settlement 
by arbitration of the title now in dispute of the Pea Patch 
island, by and between William L. Marcy, Secretary of War, on 
the part of the United States, of the one part, and James Hum¬ 
phrey, of the other part: 

To the first interrogatory, the deponent answers: 

I was eighty-eight years and four months old on the fourteenth day 
of last month, October. I reside in the town of Newcastle, in the 
State of Delaware. I have resided here since the year 1780. My 
business has been a practising lawyer for twelve years; afterwards, 
chief justice of the supreme court of the State of Delaware for 
thirty-eight years; afterwards, chancellor of the State since that 
time, and at present living a private gentleman. 

To the second interrogatory, the deponent answers: 

I do know it, and have known it since the year 1780. At first 
it appeared almost the size of a man’s hat. In 1813, when the 



69 




\ 


[ 21 ] 


United States took possession of it, it had grown to be a large 
island, it w r as not worth a cent to a private citizen. The ex¬ 
pense of banking would have been more than it was worth. 

To the third interrogatory, the deponent answers: ' 

I know nothing of the matters inquired of. 

To the fourth interrogatory, the deponent answers: 

I know nothing of the matters inquired of. 

To the fifth interrogatory, the deponent answers: 

I know nothing of the matters inquired of. 

To the sixth interrogatory, the deponent answers: 

I know nothing of the matters inquired of. 

To the seventh interrogatory, the deponent answers: 

It has always been considered and held by the courts, public 
officers, and lawyers of Delaware, as far as my memory reaches, 
that the title and jurisdiction of the State of Delaware extended 
to a circle of twelve miles around Newcastle to low water mark on 
the New Jersey shore. I have never heard the title and jurisdic- 
,, tion of the State of Delaware over that part of the river Delaware 
doubted by any court, public officer, or lawyer in Delaware on any 
occasion whatever. Within my knowledge and remembrance, writs 
have been often issued out of the courts of Delaware to seize 
vessels and persons in all parts of the river Delaware w T ithin the 
circle of low water mark on the New Jersey shore; and no dispute, 
question, or plea was ever made or suggested, within my memory, 
before any court in Delaware against the title and jurisdiction of 
Delaware over all such parts. 

To the eighth interrogatory, the deponent answers: 

I do not know. 

To the ninth interrogatory, the deponent answers: 

Reedy island and Bombay Hook island are in the State of Dela¬ 
ware. Those islands have always been held under the Delaware 
title, and occupied by taxables and voters in Delaware, so far as 
regards Bombay Hook. I know nothing of the inhabitants of 
Reedy island. 

To the tenth interrogatory, the deponent answers: 

I have no knowledge. 

To the eleventh interrogatory, the deponent answers: 

The State of Delaware, for the whole period of my remembrance, 
and as far as my researches extend, has claimed and exercised title 
and jurisdiction over the Delaware river and soil thereof, within 
the circle to low water mark on the Jersey shore, and the State has 
never failed to exercise this jurisdiction when called upon or asked 
to do so. 

To the twelfth interrogatory, the deponent answers: 

I believe no house or building was ever erected on the island 
before the United States took possession of it in 1813. The island 
was never embanked before that time. No building could have 
stood on the island before it was embanked. I believe the tides 
and storms w'ould have carried away such building. I believe no 
person was in possession of the island before that period. 

To the thirteenth interrogatory, the deponent answers: 


70 


[21] 

I have no knowledge of the matters inquired of, except as to 
those parts that I have already answered. 

To the fourteenth interrogatory, the deponent answers: 

The lands in Delaware generally are held under the title of 
William Penn and his heirs. The Penn proprietors granted title 
by warrant*,, survey, and patent. In action of trespass or ejectment, 
the plaintiff incepted his title by the warrant and survey. I never 
heard of any doubt, in the courts of Delaware, of the justice and 
legality of the Penn title to the lands in the State of Delaware. It 
has always been held as the settled maxim within the Delaware 
courts that the Penn title, under the duke of York, was the true 
title to the lands and waters in Delaware. I have seen a great 
many (I cannot say how many) titles incepted in court by the Penn 
warrants and surveys. The lands and waters generally in Dela¬ 
ware, within the twelve mile circle, are held under the Penn title. 

To the last interrogatory, the deponent answers: 

I know nothing further. 

KENSEY JOHNS. 

Sworn, examined, and subscribed to, this second day of Novem¬ 
ber, in the year of our Lord one thousand eight hundred and forty- 
seven, before me. 

JAMES C. MANSFIELD, 

Commissioner. 


Deposition of Captain Robert H. Barr, agent of the Newcastle and 
Frenchtown Railroad Company, at Newcastle, a witness pro¬ 
duced, duly sworn and examined at my house, in the town of 
Newcastle, on the second day of November, in the year A. D. 
1847, by virtue of a commission to James C. Mansfield, issued 
by the Hon. John Sergeant, arbitrator in regard to the settlement 
by arbitration of the title now in dispute of the Pea Patch island, 
by and between W. L. Marcy, Secretary of War, on the part of 
the United States, of the one part, and James Humphrey, of the 
other part. 

To the first interrogatory the deponent answers: 

I am fifty-nine years of age and upwards. I reside in the town 
of Newcastle, in the State ot Delaware, where 1 have resided for 
forty-three years, with the exception of nine years, during which 
latter period I resided in Philadelphia. My business and occupa¬ 
tion has been that of a mariner until 1833, since which time I have 
been in the employment of theNewcastle and Frenchtown Railroad 
Company at this place. 

To the second interrogatory the deponent answers: 

I know the Pea Patch island, and have known it since 1803; 
when I first knew it it was nothing more than a mud bank, with 
reeds growing on it, the greater part of it covered with water at 

high tide. 

In 1813 it was still a mud bank, with reeds, a roost and harbor 
for crows and blackbirds. I was frequently on it during the war; 



71 


.[ 21 ] 

there was great difficulty in landing upon it on account of the mud; 
it was worth nothing to any private citizen for any practical pur¬ 
pose, except that it might be kept for some speculative object at a 
future period; it woukkcost more than it was worth to bank it. I 
would here state that the island called the Pea Patch island is an 
island about the middle of the river Delaware,- and lies entirely to 
the westward of a direct line from any of the wharves at Newcastle 
and a point on the Delaware side of the river, called Reedy point. 
Reedy point being the first point below the island. 

•To the third interrogatory the deponent answers: 

I do not know anything of the matter. 

To the fourth interrogatory the deponent answers: 

I have no knowledge of the matter. 

To the fifth interrogatory the deponent answers: 

1 do not know. 

To the sixth interrogatory the deponent answers: 

I was not present, and know nothing of it. 

To the seventh interrogatory the deponent answ T ers: 

I have always understood that the jurisdiction of Delaware 
extended to low water mark on the Jersey shore; and never heard 
it doubted until the claim now in the course of investigation came 
up. I have nothing further to say in regard to the matters en¬ 
quired of. v 

To the eighth interrogatory the deponent answers: 

I have always considered the eastern channel the deepest oppo¬ 
site the island. The U. S. ship of the line Pennsylvania,in Decem¬ 
ber, 1837, passed out through the eastern channel, and at that time it 
was decidedly considered by the pilots as the deepest channel. I think 
a line of battle ship, with her armament, could pass on either side 
of the island. I have understood from others, that the eastern 
channel, since the passing of the Pennsylvania, has filled up very 
much, and that the western channel is now the deepest. The east¬ 
ern channel is the widest and shortest; yet the western channel is 
the most used, and on account of the soft bottom preferred, for a 
ship is less liable to injury if she ground. 

To the ninth interrogatory the deponent answers: 

I have always considered Reedy island and Bombay Hook island 
in the State of Delaware. 

To the tenth interrogatory the deponent answers: 

I know not. 

To the eleventh interrogatory the deponent answers: 

I believe she has; I have known some instances of officers here 
boarding ships for the purpose of serving process, but do not recol¬ 
lect the particulars. 

To the twelfth interrogatory the deponent answers: 

No house or building was ever erected on the island previous to 
the United States taking possession of it, within my knowledge; it 
never was embanked before that period. I believe no building 
could have stood on the island previous to that time; an ordinary 
building could not have withstood the tides and storms. I have no 
knowledge of any person being in possession of the island previous 
to 1813. 


72 


[21]. 

To the thirteenth interrogatory the deponent answers:' 

I have known the citizens of Delaware to fish and fowl on the 
river and on the island, and have been myself on the island fowl¬ 
ing, that is, stopped in the guts in a boat, §nd wading through the 
mud. I have understood that this State has passed laws regulating 
the fisheries upon the Delaware river. I do not think that the 
State has ever failed to exercise her right of jurisdiction over the 
Delaware river to low water mark on the Jersey shore. 

To the fourteenth interrogatory the deponent answers: 

It is my impression that the lands in Delaware are held under 
the title of William Penn and his heirs, and of the other matters, 
inquired of in this interrogatory, I do not know. 

To the last interrogatory the deponent answers: 

I know nothing further. 

ROBT. H. BARR. 

Sworn, examined, and subscribed to, this second day of Novem¬ 
ber, in the year of our Lord one thousand eight hundred and forty- 
seven, before me, 

JAMES C. MANSFIELD, 

Commissioner . 


Deposition of Thomas Janvier, a witness produced, dulj*> sworn and 
examined at his house, in the town of Newcastle, on the third 
day of November, in the year of our Lord one thousand eight 
hundred and forty-seven, by virtue of a commission to James C. 
Mansfield, issued by the Hon. John Sergeant, arbitrator, in regard 
to the settlement by arbitration of the title now in dispute of the 
Pea Patch island, by and between William L. Marcy, Secretary 
of War, on the part of the United States, of the one part, and 
James Humphrey, of the other part. 

To the first interrogatory the deponent answers: 

I will be seventy-five years of age on the twenty-fifth day of 
the next month. I now reside in the town of Newcastle, in the 
State of Delaware, where I was born. I have resided at Cantw r elPs 
bridge, in this State, and resided in the city of Philadelphia, from 
the year 1794 to 1800. Since 1800, I have continued to reside in 
the town of Newcastle. I served my time to the cabinet making 
business, at Cantwell’s bridge; afterwards lived in Philadelphia 
about six years, where I followed my trade; afterwards was en¬ 
gaged in the mercantile business at Newcastle; afterwards in the 
packet and steamboat line from Philadelphia to Baltimore; now, 
and for fifteen years past, I have not been engaged in any par¬ 
ticular business. 

T .0 the second interrogatory the deponent answers: 

I have known the Pea Patch island as far back as my memory 
extends. I have sailed by it in a small vessel belonging to Joseph 
Taltow, when I was about fourteen or fifteen years of age, fre¬ 
quently. It was a waste island, with nothing but reeds upon it, 
and with a very full tide was covered over with water; a harbor 



73 


[21] 

for crows, and immense quantities resorted to the island to roost; 
and the crows continued to resort to the island until the United 
States took possession. The island had increased in size, and was 
in the same condition when the United States took possession of it 
in 1S13. I do not suppose it was worth a cent to any private, 
person, before the United States took possession. I say certainly 
it was not worth the expense of a survey of the island for the pur¬ 
pose, of locating it. 

To the third interrogatory the deponent answers: 

I knew Mathew Pierce well, and I have seen him write, and am 
well acquainted with his handwriting, and the name “Mathew 
Pierce 1 ’ signed to the paper, marked A, are in his proper hand¬ 
writing. I also knew Thomas W. Clark, whose name is signed as 
a witness, have seen him write, and am also acquainted with his 
handwriting, and the signature of Thomas W. Clark is in his 
proper handwriting. Of the other matters inquired of in this in¬ 
terrogatory, I kno\y nothing. 

To the fourth interrogatory the deponent answers : 

I do not know. 

To the fifth interrogatory the deponent answers : 

I do not know. 

To the sixth interrogatory the deponent answers : 

I have no personal knowledge of the matters inquired of. 

To the seventh interrogatory the deponent answers : 

I have never heard it doubted, by any person whatever, that the 
title and jurisdiction of the State of Delaware extended over the 
Delaware river to low water mark on the Jersey shore, within 
the 12 miles circle around Newcastle. It has always been con¬ 
sidered here that the title and jurisdiction over those parts, w r ere 
unquestioned and indisputable. It is within my memory that 
Richard C. Dale, who was sheriff of Newcastle county, from 1803 
to 1806, after summoning a posse, boarded a ship on her outward 
passage, and arrested a person on board of the ship after she had 
been run ashore on the Jersey side, nearly opposite the town of 
Newcastle; the names of the parties and the minute detail of the 
affair, I do not now remember. About twenty-five years since, 

I accompanied the deputy of the sheriff of Newcastle county, and 
.with him boarded a sloop then between the Pea Patch island and 
the Jersey shore, and was with the deputy sheriff when he arrested 
the captain of the sloop by virtue of a writ, issued out of one of 
the courts of Delaware. The matter was compromised with me, 
the captain of the sloop paying the demand, and we let him go. 

To the eighth interrogatory the deponent answers : 

My knowledge of the matter is not sufficient to enable me to 
answer clearly. 

To the ninth interrogatory the deponent answers : 

Both these islands are in the State of Delaware, and have 
always been considered so. 

To the tenth interrogatory the deponent answers : 

I have no knowledge of the fact. 

To the eleventh interrogatory the deponent answers : 


74 


[21] 

4 

The State of Delaware, as far as my knowledge and observation 
extends, has always claimed jurisdiction and title over the river 
Delaware and soil thereof, within the circle to low water mark on 
the Jersey shore, and the State has always exercised that jurisdic¬ 
tion when called upon to do so. 

To the twelfth interrogatory the deponent answers : 

No house or building was ever erected on the island, previous to 
the United States taking possession of it, and commencing the . 
works there. It never was embanked before that time, to my 
knowledge or belief. I should very much doubt the standing of 
any building erected on the island before that period, as it must 
necessarily have been sbbject to the depredation of tides and 
storms; I never heard of any person being in possession of the 
island, or making any claim to it previous to that time. 

To the thirteenth interrogatory the deponent answers : 

The citizens of Delaware have always, within my remembrance, 
fished and fowled on the river within the circle of twelve miles, 
under a claim of right to the river existing in the State of Dela¬ 
ware. The State has passed laws, from time to time, to regulate 
the fisheries on the river Delaware. I have never heard of an in¬ 
stance in which the State has failed to exercise her jurisdiction 
and title over the river to low water mark on the Jersey shore, 
when called on to do so. 

To the fourteenth interrogatory, the deponent answers: 

The lands in Delaware, I believe, are held under the title of 
William Penn’and his heirs; as to the balance of this interrogatory 
I am not sufficiently informed to answer. 

To the last interrogatory, the deponent answers: 

I know nothing further. 

THOS. JANVIER. 

\ 

V. 

Sworn, examined, and subscribed to, this third day of November, 
in the year of our Lord, one thousand eight hundred and forty 
seven. 

JAMES C. MANSFIELD, 

Commissioner. 


Deposition of Captain William Robinson, of the town of New¬ 
castle, in the State of Delaware, a witness produced, duly sworn, 
and examined on the fourth day of November, in the year A. D., 
1847, at his house in the town of Newcastle, by virtue of a com¬ 
mission to James C. Mansfield, issued by the honorable John Ser¬ 
geant, arbitrator in regard to the settlement, by arbitration, of* 
the title now in dispute of the Pea Patch island, by and between 
William L. Marcy, Secretary of War,*on the part of the United 
States, of the one part, and James Humphrey, of the other part: 

To the first interrogatory, the deponent answers: 

I am now past sixty-five years of age. I reside in the town of 



75 


[ 21 ] 

Newcastle, and have resided here nineteen years. 1 previously re¬ 
sided in the city of Wilmington, and have resided in this county 
all my life. My business, until almost thirteen years past, was 
coach makings since that time I have been engaged as a waterman, 
in my own vessel; in early life I went occasionally in my father’s 
shallop on the Delaware. 

To the second interrogatory, the deponent answers: 

I do know the Pea Patch island; the island lies about the middle 
of the Delaware river, in a south direction from the town of New¬ 
castle, and on the western side of a direct point from Reedy Point 
(the first point below the island, on the Delaware side) to New¬ 
castle. I was on the island about the year 1795; the island was 
then a marsh, which was overflowed at every full tide; it was 
covered with reeds and a kind of tangled vine. Some natural 
guts running through it, but no artificial work of any description. 
1 have no knowledge of the condition of the island at the time the 
United States took possession of it, but suppose, from its situation 
and what 1 had seen of it before, that it was not worth embanking. 

To the third interrogatory, the deponent answers: 

I know nothing about it. 

To the fourth interrogatory, the deponent answers: 

I do not know. 

To the fifth interrogatory, the deponent answers: 

I cannot answer from any knowledge of my own. 

To the sixth interrogatory, the deponent answers: 

1 know nothing about the matter. 

To the seventh interrogatory, the deponent answers: 

I have never heard the jurisdiction of the State questioned, over 
the river Delaware to low water mark on the Jersey shore, within 
the twelve mile circle. About fourteen years since, I accompanied 
the deputy sheriff, Isaac P. Walker, in a boat, fcr the purpose of 
arresting a person on board a schooner that was coming down 
close on the Jersey shore; the deputy sheriff boarded the vessel in 
that situation, and arrested the captain. I think the matter was 
compromised, and the captain was discharged from the arrest, on 
his paying some amount of damages claimed of him for running 
into a sloop laying at anchor off this town. 

To the eighth interrogatory, the deponent answers: 

The eastern channel is the widest and deepest channel abreast of 
the Pea Patch; as to the western channel, I do not know whether 
a line of battle ship, with her armament on board, could pass it or 
not. The eastern channel is also the shortest channel; I have 
passed through both channels many times. 

To the ninth interrogatory, the deponent answers: 

I know that Reedy island and Bombay Hook island have been 
always considered in the State of Delaware; but I know nothing 
of the inhabitants. 

To the tenth interrogatory, the deponent answers: 

I do not know. 

To the eleventh interrogatory, the deponent answers: 

I believe that Delaware has claimed and exercised jurisdiction 


76 


[21] 

over the river within those parts; and have never heard of any 
other than Delaware exercising such jurisdiction, except the gov¬ 
ernment of the United States. 

To the twelfth interrogatory, the deponent answers: 

I never saw or heard of a house on the island previous to 1813; 
no house could have stood there, when I first saw it, without being 
inundated with every full tide. I never saw or heard of any em¬ 
bankment upon the island previous to that time. I never heard of 
any person being in possession of the island, or making any claim 
to it, previous to that time. 

To the thirteenth interrogatory, the deponent answers: 

The citizens of Delaware have, since my remembrance, used the 
river for fishing and fowling, without hindrance or molestation, 
within the twelve mile circle. The Jerseymen have undertaken to 
hinder our citizens from catching oysters in Morris river cove; and 
I have understood they exercise some authority above the circle, 
and have taken some gilling nets. 

To the fourteenth interrogatory, the deponent answers: 

My knowledge is not sufficient to enable me to answer. 

To the last interrogatory, the deponent says: 

I know nothing further. 

WILLIAM ROBINSON. 

Sworn, examined, and subscribed to, this fourth day of Novem¬ 
ber, in the year of our Lord one thousand eight hundred and forty- 
seven, before me, 

JAMES C. MANSFIELD, 

Commissioner. 


In the superior court of the State of Delaware, in and for New¬ 
castle county. 

In the late supreme court of the May term, 1811. 

Read, jr., G. R. Mark Richards, 54. 'l _ 

J ’ 1 For atta: 

Rogers, Florimond Dusar—otherwise called -r, ’ 

F. Dusar. j Bal1 m $ 2 > 600 - 


Sheriff’s returns, attached as per inventory and appraisement, 
July 5, 1811, narr. filed, and rule plea. Pleas filed; replications 
and issue; afterwards judgment for the plaintiff on demurrer, after¬ 
wards of error and judgment reversed, on account of the insuffici¬ 
ency of the affidavit. 


Attest: 


SAMUEL BIDDLE, 

Prothonotary . 
Per P. B. BANDEYER, 
Newcastle , November 1, 1847. 



77 


[21] 

Deposition of General James Rogers, of Newcastle, Delaware, a 
witness produced, duly sworn and examined at his office in the 
town of Newcastle on the fourth day of November, in the year 
of our Lord one thousand eight hundred and forty-seven, by vir¬ 
tue of a commission to James C. Mansfield, issued by the Hon. 
John Sergeant, arbitrator, in regard to the settlement by arbitra¬ 
tion of the title, now in dispute, of the Pea Patch island, by and 
between William L. Marcy, Secretary of War, on the part of the 
United States of the one part, and James Humphrey of the other 
part. 

To the first interrogatory, the deponent says: 

That he is sixty years of age and upwards; that he has resided 
for the last four years in the county at a place called il Boothhurst,’ 7 
about one mile and a quarter from the town of Newcastle; during 
which time his occupation has been that of a farmer; that from the 
•* first day of January, 1801, until his removal to his present place of 
residence, he lived in the town of Newcastle, and from the 18th 
day of May, 1803, down to his removal into the country, he was 
engaged in the practice of the law; and during twenty years of 
of that period was attorney general of the State of Delaware. 

To the second interrogatory, the deponent answers: 

He has known the Pea Patch island for a great many years; he 
believes his knowledge of the island extends very nearly as far 
back as his residence in the town. He obtained a particular know¬ 
ledge of the island, called the Pea Patch, from a visit which was 
made by General Swift, of the engineer corps, to the island, with a 
view of examination of the island as a place for a fortification; the 
deponent, and also Major Stockton, then of the army, since Gov¬ 
ernor of the State of Delaware, now deceased, were taken to the 
island with General Swift, by Colonel Allan McLane, then the 
collector for the district of Delaware; some time was spent upon 
the island. As an inhabitant of the town of Newcastle, he, with 
many others, felt a deep interest in the inquiry General Swift was 
then making; and therefore his attention was particularly drawn to 
the general appearance of the island; the time of this visit w T as be¬ 
tween the time of the declaration of war in 1812, and the com¬ 
mencement of the work upon the island on the part of the United 
States; the visit was made either pending the war with Great Brit¬ 
ain, or shortly after. At the time of this visit, the condition and 
appearance of the island presented from two to four acres, of what 
might be called upland, or land that would not be covered with 
water, except by a high tide; the residue of the island was a marsh, 
with a thick growth of reeds, and must have been covered by every 
tide w 7 ith water; the highest part had no growth of either trees or 
bushes, but a growth of some description of grass. There were no 
buildings upon any part of it; and the part covered with reeds was 
the roosting-place of hundreds of thousands of crows. The island 
was valueless to a private citizen, as, according to the belief of the 
deponent, it was not worth the expense of reclaiming. 


[ 21 ] 78 

To the third interrogatory, the deponent having examined the 
paper marked A, he answers: 

That he believes the paper to be a paper belonging to the late 
Chief Justice Booth, whose daughter the deponent married, and 
found among his papers after his decease. It has been impressed 
upon the mind of the deponent for some years, that at some time 
he had seen a warrant issued for the Pea Patch island, which had 
been issued in favor of Mathew Pierce, and in which Mr. Booth 
was interested; and further, that if he ever did see such a warrant, 
he has no knowledge of what became of it. If this impression is 
correct, as to having seen the warrant, it was a special warrant for 
the island, by name and description; and according to the decision 
of our courts, such a paper, followed by possession, gave title with¬ 
out a survey or patent. 

To the fourth interrogatory, the deponent answers: 

That he believes, whilst he was attorney general, criminal pro¬ 
cess was served upon persons upon that island, and indictments 
framed and sent to the grand jury, for an offence or offences alleged 
to have been committed on the island, but does not recollect 
whether bills were found or not. 

To the fifth interrogatory, the deponent answers: 

He has no knowledge. 

To the sixth interrogatory, the deponent answers: 

He has no knowledge of the matter inquired of, further than that 
General Bloomfield was in command as a brigadier general, as he 
believes, during the war, and that his command, as he believes, ex¬ 
tended to this place. 

. To the seventh interrogatory, the deponent answers: 

It has been uniformly considered by the courts, public officers 
and lawyers of the State of Delaware, that her title and jurisdic¬ 
tion extended within a twelve mile circle around Newcastle, to low 
water mark on the Jersey shore; he has never heard her title or 
jurisdiction over that part of the river Delaware doubted by any 
court, public ( dicer or lawyer in Delaware. He knows that writs 
have been often issued from the courts in Delaware for Newcastle 
county, and that by virtue of such writs, persons, vessels and car¬ 
goes have been arrested and seized within the jurisdiction above 
alluded to; and in no instance, within his knowledge, was the juris¬ 
diction ever disputed, or any question made as to the jurisdiction 
of the State, when such persons were arrested or vessels and car¬ 
goes seized. The deponent has in many cases caused w r rits to issue 
and persons to be arrested, and vessels and cargoes to be attached 
and seized upon the river Delaware, and within the aforesaid juris¬ 
diction, and has been concerned in cases where process of attach¬ 
ment have been issued by other members of the bar. He well 
recollects one case, in the supreme court, of Mark* Richards against 
F. Dusar; he was counsel for the defendant, and every defence was 
set up that was considered available, and no plea to the jurisdic¬ 
tion was set up. An abstract from the record of the said suit, 
marked B, is hereto annexed. A copy of the entire record of the 


' 79 [ 21 ] 

said suit, this deponent believes, is in the possession of the coun¬ 
sel of the United States. 

To the eighth interrogatory, the deponent answers: 

He has no k nowledge of the matters inquired of. 

To the ninth interrogatory, the deponent says: 

That Reedy island and Bombay Hook island, he has always un¬ 
derstood, form a part of the State of Delaware; that the deponent 
was a part owner of Bombay Hook island, and always while he so 
owned paid taxes for the same in the county of Newcastle, and 
that the residents upon that island were assessed, paid taxes and 
voted in this county, until the island was attached, by an act of 
the legislature of Delaware, to the county of Kent. 

To the tenth interrogatory the deponent, for his answer, refers to 
his answer to the fourth interrogatory. 

To the eleventh interrogatory the deponent answers: 

That, during his experience as a lawyer, he has always understood 
the jurisdiction of Delaware to extend over the whole ground em¬ 
braced by the interrogatory, and that the State of Delaware has al¬ 
ways exercised that jurisdiction in its fullest extent. 

To the twelfth interrogatory the deponent says: 

He has no knowledge of any house or building upon the island, 
previous to the commencement of the works by the United States; 
he has no knowledge of any embankment upon the island previous 
to the embankment put up by the United States. The deponent 
answers further, that, when he visited the island in company with 
General Swift, there was a spot embanked, from two to four acres, 
upon which he thinks a house could have been built without being 
swept off by tides or storms. The deponent has no knowledge of 
any actual possession of the island by any person, previous to the 
taking possession by the United States. 

To the thirteenth interrogatory the deponent says: 

He has no knowledge of any matters contained in the interroga¬ 
tory, except as he has heretofore answered to previous interroga¬ 
tories. 

To the fourteenth interrogatory the deponent says: 

The lands in Delaware are held generally under the title of Wil¬ 
liam Penn and his heirs. The Penn proprietary granted title by 
warrant, survey, and patent. When deponent came to the bar he 
understood the rule, with respect to trespass involving title or eject¬ 
ment, required the party to show title out of the proprietary; this 
rule was relaxed by the subsequent decisions of our courts, by which 
the party was permitted to begin his chain of title without first - 
showing title out of the proprietary; but, notwithstanding this re¬ 
laxation of the above rule, he has seen, in the trial of causes, many 
instances, where the title from the proprietary was given in evi¬ 
dence. With respect to lands held by warrant, survey, and patent, 
from William Penn and his heirs, the title has been universally 
held as good title. It has been always held by our courts that the 
Penn title, under the duke of York, was the true title to the lands 
and waters in Delaware, so far as his knowledge extends. He 
knows no other title than the Penn title, a few titles held by grant 


80 


[ 21 ] 

from the aborigines, and from our own State, by grants issued from 
our Land Office. 

i To the last interrogatory the deponent answers: 

That he has nothing further to state that he deems important to 
the United States. 

JAMES ROGERS. 

Sworn, examined, and subscribed to, this fourth day of Novem¬ 
ber, in the year of our Lord one thousand eight hundred and forty- 
seven. 

Before me, JAMES C. MANSFIELD, 

Commissioner. 


Deposition of Captain John Sutton, of St. George’s, in Red Lion 
hundred, Newcastle county, and State of Delaware, a witness 
produced, duly sworn and examined at his house, on the 5th day 
of November, A. D. 1847, by virtue of a commission directed 
to James C. Mansfield, by the Hon. John Sergeant, arbitrator, 
in regard to the settlement, by arbitration, of the title now in 
dispute of the Pea Patch island, by and between William L. 
Marcy, Secretary of War, on the part of the United States of 
the one part, and James Humphrey, of the other part. 

To the first interrogatory the deponent answers: 

I am now in the eighty-first year of my age. I reside in the 
village of St. George’s, and have resided here since the year 1788; 

I resided in the town of Newcastle four years previous to that 
time; I am a native of the State of Delaware, and have always 
resided in this State. During the four years I resided in New¬ 
castle, I was learning the business of a ship-carpenter; afterwards 
I followed the business of a house-carpenter until 1801; afterwards 
I was engaged in the mercantile business and farming until 1832; * 

sinee that time I have been farming. 

To the second interrogatory the deponent answers: 

I do know the Pea Patch island;.! have known it from my 
early boyhood up to the present time. When I first knew it, to 
the best of my recollection, it was just to be seen at high water, a 
mud bank, or marsh, extending up and down the river in a long- 
narrow strip, covered with reeds or rushes of some description. 
The island about and after that time grew very fast. During my 
residence at Newcastle, I frequently passed up and down the 
river on both sides of the island; afterwards it became the resort 
of immense numbers of crows for roost; they would rise off the 
island in the morning in great clouds and spread over the country. 
During the time a premium wa-s paid in this county for crow 
scalps. I have understood that people from this county made fre¬ 
quent excursions to the island, for the purpose of killing crows to 
obtain the scalps, on account of the premium, a great many of 
■which I bought, understanding that a portion of them was killed 



81 


[21] 

on the island, and got the premium from the county treasurer of 
this county. I was never on the island before the United States 
took possession of it. I was on the island after the United States 
began to build the fort. I do not suppose the island was worth a 
cent to any private citizen at the time the United States took pos¬ 
session. I am convinced it could not be worth the expense of 
banking. 

To the third interrogatory the deponent answers, after looking 
upon paper marked A: 

I know nothing about it. 

To the fourth interrogatory the deponent answers: 

I do not know. 

To the fifth interrogatory the deponent answers: 

I do not recollect sufficiently clear to answer. 

To the sixth interrogatory, the deponent answers: 

I was not present, nor do I recollect General Bloomfield by 
name, and do not know what situation he held in the State of New 
.» Jersey. I was a member of the legislature when the act of cession, 
ceding the island to the United States, was passed; there were 
several gentlemen at Dover on that occasion from abroad; I do not 
recollect their names or who they were, but I never heard the title 
of the State of Delaware to the island questioned or doubted; in 
fact, it was considered perfect and without a doubt. 

To the seventh interrogatory, the deponent answers: 

I .have never heard the title and jurisdiction of the State of 
Delaware, over the river Delaware, within the twelve mile circle 
around New Castle, to low water mark on the Jersey shore, doubt¬ 
ed by any persop in the State of Delaware; and further J know 
not. 

To the eighth interrogatory, the deponent answers: 

I have always understood that the eastern, or channel upon the 
Jersey side of the island, was the deepest, widest, and main ship 
channel. When I lived at New Castle large vessels generally came 
through that channel, this I remember perfectly, and during the 
revolutionary war, being a boy, and living above the town of New 
Castle, I believe the British ships came up through that channel. 
I remember the blowing up of the “ Augusta,” a British ship of 
war, at the old Mud island fort. I have no recollection of having 
seen a very large ship pass through the channel on the western side 
of the island. 

• To the ninth interrogatory, the deponent answers: . 

Reedy island and Bombay Hook island have always been con¬ 
sidered in the State of Delaware. 

To the tenth interrogatory, the deponent answers: 

* I do not know. 

To the eleventh interrogatory, the deponent answers: 

I do not know. 

To the twelfth interrogatory, the deponent answers: 

From my boyhood up to 1813, I saw the island several times 
every year, and I never observed a house or building of any descrip¬ 
tion upon it, and if there had been any building upon it I could not 

6 


82 


[ 21 ] 

have passed it unobserved. It never was embanked before 1813, to 
my knowledge. I am clearly of the opinion that no common build¬ 
ing could have stood on the island before it was embanked, as the 
tides run very heavy on it. I never heard of any person being in 
possession of the island previous to 1813. 

To the thirteenth interrogatory, the deponent answers: 

The citizens of Delaware have fished and fowled on the river 
Delaware, and used it within the circle to low water mark on the 
Jersey shore, and I never heard of any of them being disturbed or 
molested. 

To the fourteenth interrogatory, the deponent answers: 

I cannot answer any part of this interrogatory. 

To the last interrogatory, the deponent answers: 

1 do not think I can state any thing further. 

JOHN SUTTON. 

Sworn, examined and subscribed to, this fifth day of November, 
in the year of our Lord one thousand eight hundred and forty-seven, 
before me, 

JAMES C. MANSFIELD, 

Commissioner . 


Deposition of Doctor James N. Sutton, of the village of St. 
George’s, in Red Lion hundred, in the county of Newcastle, a 
witness produced, duly sworn and examined at his house, on the 
fifth day of November, A. D. 1847, by virtue of a commission to 
James C. Mansfield, issued by the Hon. John Sergeant, arbitra¬ 
tor, in regard to the settlement by arbitration of the title now in 
dispute of the Pea Patch island, by, and between William L. 
Marcy, Secretary of War, on the part of the United States of the 
one part, and James Humphrey of the other part: 

' To the first interrogatory, the deponent answers: 

1 am fifty years of age. I reside in the village of St. George’s, 
Red Lion hundred, in Newcastle county, in the State of Delaware, 
and have resided here all my life. My profession is a doctor of 
medicine, and am now engaged in my profession. 

To the second interrogatory, the deponent answers: 

I know the Pea Patch island. I recollect it about thirty-five 
years since as a marsh island in the Delaware river; and, when I 
first knew it, it was a mere resort for crows, and such was its con¬ 
dition when the United States took possession of it. At the time 
the United States took possession of it, I do not consider it was 
worth anything. 

To the third interrogatory, the deponent answers, after looking 
at the paper marked A: 

I know nothing about it. 

To the fourth interrogatory, the deponent answers: 

I believe writs have been issued by the justices here and served 
on persons on the island; but I do not recollect the cases. 



83 


[ 21 ] 


To the fifth interrogatory, the deponent answers: 

John Corkran, who resided on the Pea Patch island for some 
twelve or thirteen years, voted at this place at, I believe, every 
general election, during his residence, without challenge or objec¬ 
tion. I knew John Corkran from the time he first came to the 
State, and I believe he never resided at any other place in this 
State other than the Pea Patch. He could not have voted without 
being assessed and having paid a county tax. For twelve years 
past, with but one or two exceptions, I have been either inspector 
or a judge of the general election, and the right to vote here has 
always been strictly scrutinized. Parties are nearly equal, and 
each party, beside the judges, look closely to the qualifications of 
voters. 

To the sixth interrogatory, the deponent answers: 

I know nothing of the matters inquired of. 

To the seventh interrogatory, the deponent answers: 

I do not feel myself sufficiently informed to answer this inter- 
.» rogatory. 

To the eighth interrogatory, the deponent answers: 

I know nothing of the channels. 

To the ninth interrogatory, the deponent answers: 

Reedy island and Bombay Hook island are in the State of Dela¬ 
ware. The inhabitants of Reedy island are assessed, and vote in 
St. George’s hundred, in this county. 

To the tenth interrogatory, the deponent answers: 

I do not know. 

To the eleventh interrogatory, the deponent answers: 

I believe the State of Delaware has claimed and exercised juris¬ 
diction over the Delaware river to low water mark on the Jersey 
shore within the twelve-mile circle. 

To the twelfth interrogatory, the deponent answers: 

I never heard of any person being in possession of the island 
before 1813, and it certainly was never embanked before that time. 

To the thirteenth interrogatory, the deponent answers: 

My information is not sufficient to enable me to answer. 

To the fourteenth interrogatory, the deponent answers: 

I am not sufficiently informed to answer the interrogatory. 

To the last interrogatory, the deponent answers: 

I have nothing further to state. 

JAMES N. SUTTON. 

Duly sworn, examined, and subscribed to, this fifth day of No¬ 
vember, in the year of our Lord one thousand eight hundred and 
forty-seven, before me, 

JAMES C. MANSFIELD, 

Commissioner. 


84 


[ 21 ] 

Deposition of William Cleaver, the elder, of the village of Port 
Penn, in St. George’s hundred, New Castle county, in the State 
of Delaware, a witness produced, and, being conscientiously 
scrupulous of taking an oath, duly affirmed and examined, at his 
house in the said village, on the fifth day of November, A. D. 
1847, by virtue of a commission to James C. Mansfield, issued 
by the honorable John Sergeant, arbitrator, in regard to the set¬ 
tlement by arbitration of the title now in dispute of the Pea 
Patch island by and between William L. Marcy, Secretary of 
War, on the part of the United States, of the one part, and James 
Humphrey, of the other part: 

To the first interrogatory, the deponent answers: 

I was seventy-seven years of age last August. I now reside in 
the village of Port Penn, in St. George’s hundred, in New Castle 
county, State of Delaware. I have resided on my farm, adjoining 
the village, and in the village, ever since the year 1795. I was 
born in Cumberland county, in the State of New Jersey, from 
whence I moved to Salem, in New Jersey, in the year 1783, and 
then lived on the river shore, nearly opposite to the Pea Patch 
island, until I removed over to this county. My business and oc- * 
cupation have been almost exclusively farming and grazing; at 
present, 1 am not engaged in particular business. 

To the second interrogatory, the deponent answers: 

I do know the Pea Patch island. I have known it since the year 
1783. When I first knew the island, it was a mud flat, with wild 
oats and a kind of wild grass growing upon it. I do not think there 
were any reeds growing upon it at that time; the mud I do not 
think was high enough or stiff enough to support reeds. Before I 
came to Delaware to reside, 1 was frequently on the island after 
ducks and geese. There was no part of it that was not overflowed 
at every full tide, except, probably, at the lower end; there might 
have been a small portion that a common full tide would not over¬ 
flow. I w r as frequently on the island after I came to Delaware to 
reside, and continued to visit it, in the fall of the year, nearly 
every year, until the United States took possession of it in 1813. 
At that time, it was in much the same condition, with very little 
alteration that I could perceive. At the time the United States 
took possession, it could be worth nothing for any purpose but to 
gun on. I would not have given a cent for it for any other pur¬ 
pose. 

To the third interrogatory, the deponent answers: 

After looking at the paper marked A, I know nothing about the 
matter. 

To the fourth interrogatory, the deponent answers: 

I know nothing about it. 

To the fifth interrogatory, the deponent answers: 

I know nothing about it. 

To the sixth interrogatory, the deponent answers: 

I was not present, and do not know anything about it. 

To the seventh interrogatory, the deponent answers: 


85 


[ 21 ] 


I have no knowledge of the matters inquired of. 

To the eighth interrogatory, the deponent answers: 

I do not know the depth or width of the channels. 

To the ninth interrogatory, the deponent answers: 

Reedy island and Bombay Hook island, I have always under¬ 
stood, were in the State of Delaware; I know the man living on 
Reedy island, and I believe he votes in St. George’s hundred. 

To the tenth interrogatory, the deponent answers: 

I do not know. 

To the eleventh interrogatory, the deponent answers: 

I cannot answer as to those matters. 

To the twelfth interrogatory, the deponent answers: 

From the time I first knew the island, up to the time the United 
States took possession of it, I never saw or heard of any house or 
building, of any description, upon the island, except muskrat 
houses. I am clearly certain that there could not have been a 
building, or house of any description, (except .as above,) upon 
the island previous to that time; for I lived during the whole 
time, from l'TSS to 1813, in sight of the island, my dwelling in 
Delaware, as well as in Jersey, being in full view of the island; it 
was never embanked before the United States took possession of 
• it; if it had been embanked I would have seen the bank, or some 
traces of it; no ordinary or common building could have stood on 
the island previous to embankment; I do not know that any per¬ 
son ever had possession of the island, as owner or tenant, previous 
to 1813. 

To the thirteenth interrogatory, the deponent answers: 

I know that I, myself, and other citizens of Delaware, have 
fished and fowled on the Delaware river, but further I cannot say. 

To the fourteenth interrogatory, the deponent answers: 

I know' nothing of the matter inquired of. 

To the last interrogatory, the deponent answers: . 

I have nothing further to state, except that, for many years pre¬ 
vious to the United States taking possession, the island was the 
roosting place of a vast number of crows; this was not the case 
when I first knew the island; according to the best of my recol¬ 
lection, the crows abandoned the Pea Patch soon after the United 
States commenced work on the island, and have since principally 
resorted to Reedy island, opposite to this place. 

WILLIAM CLEAVER. 

The said William Cleaver, being conscientious in regard to the 
taking of an oath, was duly affirmed, examined and subscribed his 
name hereto, this fifth day of November, in the year of our Lord 
one thousand eight hundred and forty seven. Before me, 

JAMES C. MANSFIELD, 

Commissioner . 


i 


86 




[ 21 ] 

Deposition of Doctor Charles H. Black, clerk of the peace and 
register in chancery, at Newcastle, a witness duly sworn and ex¬ 
amined at his office, in the town of Newcastle, in Newcastle 
county, in the State of Delaware, on the sixth day of November, 
in the year of our Lord one thousand eight hundred and forty- 
seven, by virtue of a commission to James C. Mansfield, issued 
by the Hon. John Sergeant, arbitrator, in regard to the settle¬ 
ment, by arbitration, of the title now in dispute of the Pea 
Patch island by and between William L. Marcy, Secretary of 
War, on the part of the United States of the one part, and James 
Humphrey of the other part: 

To the first interrogatory, the deponent answers: 

That he is about thirty-eight years of age; that from the year 
1830 to the year 1840, he resided at Delaware city, Red Lion hun¬ 
dred, and w r as a practitioner of medicine from the year 1840 to the 
present time; he has resided in Newcastle, and held the offices of 
register in chancery and clerk of the peace, by virtue of said last 
office, clerk of the levy court of Newcastle county. 

To the second interrogatory, the deponent answers: 

That he has known the Pea Patch island only since the year 
1830, a long time after the United States took possession of it, and’ 
consequently knows nothing of its value previous to that time. 

To the third interrogatory, the deponent answers: 

That he knows nothing. 

To the fourth interrogatory, the deponent answers: 

That he knows nothing. 

To the fifth interrogatory, the deponent answers: 

That he has reason to believe that, for many years back, all tax¬ 
able persons permanently residing upon the Pea Patch island, have 
been assessed and paid tax in Red Lion hundred, Newcastle county, 
Delaware; but from his own personal knowledge, Mr. John Cork- 
ran, in the employ of the United States and residing on said island 
as agent or tenant, has for the last ten or twelve years been regu¬ 
larly assessed in Red Lion hundred, and during that time has paid 
tax and voted at the general election in said hundred. As cor- 
roberating this statement, in part, he begs leave to refer to paper 
C, hereto attached. 

To the sixth interrogatory, the deponent answers and says: 

He knows nothing. 

To the seventh interrogatory, the deponent answers: 

The deponent knows nothing of his own personal knowledge. 

To the eighth interrogatory, the deponent answers: 

That he does not know. 

To the ninth interrogatory, the deponent answers: 

That such has always been his impression. 

To the tenth interrogatory, the deponent answers: 

That he knows nothing. 

To the eleventh interrogatory, the deponent answers: 

That such has been his belief. 

To the twelfth interrogatory, the deponent answers: 


87 


[ 21 ] 


That he does not know. 

To the thirteenth interrogatory, the deponent answers: 

That such is his belief from general information. 

To the fourteenth interrogatory, the deponent answers: 

That he knows nothing, except that he has always understood 
that the lands in Delaware, within the twelve miles circle, referred 
to in this interrogatory, are held under titles from William Penn 
and his heirs. 

To the last interrogatory, the deponent answers: 

That he knows no other matter or thing that could benefit the 
United States in this case. 

C. H. BLACK. 


In the office of the clerk of the peace in and for the county of 
Newcastle, in the State of Delaware, the following assessments now 
remain of record, to wit: in the assessment of taxables in Red 
Lion hundred, in said county: 


1836. 

John Corkran, 

poll tax, 

300. 




300 

1837. 

<< 

u 

300. 



u 

300 

1838. 

u 

u 

300. 



u 

300 

1839. 

u 

u 

300. 



u 

300 

1840. 

u 

(( 

300. 



u 

300 

1841. 

u 

u 

400, 

plate,4 . 

(C 

404 

1842. 

u 

u 

400 

u 

4. 

u 

404 

1843. 

u 

u 

400 

u 

4. 

u 

404 

1844. 

it 


400 

u 

4. 

u 

404 

1845. 

a 

u 

400. 



u 

400 

1846. 

u 

u 

400. 



u 

400 

1847. 

a • 

u 

400. 



u 

400 


State of Delaware, ) 

Newcastle county , $ 

I, Charles H. Black, clerk of the peace in and for said county, 
do certify that the above and foregoing is a true statement of the 
assessment of John Corkran, (or John Corkrin,) as taken from the 
assessment list for Red Lion hundred, in said county, and now re¬ 
maining of record in my office. 

In testimony whereof, I have hereunto set my hand, and affixed 
my seal of office, at Newcastle, the 4th day of Novem- 
fsEAL.j ber, A. D. 1847. 

C. H. BLACK, 

Clerk of the Peace , Newcastle county. 















I 


88 


[ 21 ] 


Deposition of Nathaniel Wolfe, Esq., of Newcastle hundred, in 
Newcastle county, late United States marshal for the district of 
Delaware, and formerly sheriff of the county of Newcastle, a 
witness produced, and being conscientiously scrupulous of taking 
an oath, w r as duly affirmed and examined at Newcastle, on the 
sixth day of November, A. D. 1847, by virtue of a commission 
to James C. Mansfield, issued by the honorable John Sergeant, 
arbitrator in regard to the settlement by arbitration of the title, 
now in dispute, of the Pea Patch island, by and betw T een Wil¬ 
liam L. Marcy, Secretary of War, on the part of the United 
States, of the one part, and James Humphrey, of the other part. 


To the first interrogatory, the deponent answers: 

I am now forty-nine years of age; I now reside in Newcastle 
hundred, in Newcastle county, in the State of Delaware, and have 
resided in this hundred since 1836. From November, 1836, to No¬ 
vember, 1838, I .resided in the town of Newcastle, during which 
time I was sheriff of the county of Newcastle, and afterwards, 
from April, 1841, to some time in 1844, I was the United States 
marshal for the district of Delaware; I am now engaged in 
farming. 

To the second interrogatory, the deponent answers: 

I know the island called the Pea Patch island; I first knew it 
in 1815; its appearance then was a mere marsh island; and further 
I cannot say. 

To the third interrogatory, the deponent, after looking upon the 
paper marked A, answers: 

I know' nothing of the matter. 

To the fourth interrogatory, the deponent answers: 

I do not know'. 

To the fifth interrogatory, the deponent answers: 

I do not know', except from report, and seeing the names of per¬ 
sons residing on the island on the assessment lists and duplicates 
for Red Lion hundred. 

To the sixth interrogatory, the deponent answers: 

I have no knowledge of the matters inquired about. 

To the seventh interrogatry, the deponent answers: 

As far as my experience and observation extends, it has always 
been held and considered by the courts, public officers, lawyers, 
and others of the'State of Delaware, that the title of the State of 
Delaware extended within a circle of twelve miles around New¬ 
castle, to low water mark on the Jersey shore. I have never heard 
the title and jurisdiction of the State of Delaware over that part of 
the river Delaware doubted by any person whatever; I have often 
heard of writs having been issued out of the courts of Delaware, 
to seize vessels and persons upon the river; I never executed, as 
sheriff of this county, but one writ; that was a writ of foreign at¬ 
tachment, issued out of the superior court, on the order of James 
A. Bayard, Esq., at the suit of the United States Insurance Com¬ 
pany, against Edmund Didier. By virtue of the above named writ, 
I seized a quantity of specie on board the hermaphrodite brig Su- 


89 ' [ 21 ] 

san, then lying out in the river opposite the town of Newcastle, 
there was no objection whatever to the service of the writ. 

To the eighth interrogatory, the deponent answers: 

I do not know anything about the channels. 

To the ninth interrogatory, the deponent answers: 

Reedy island and Bombay Hook island are both in the State of 
Del aware. During my term as sheriff I had official business with 
several of the inhabitants of Bombay Hook island. 

To the tenth interrogatory, the deponent answers: 

I do not know that writs have been issued out of the Delaware 
courts and served on persons on the Pea Patch island; but 1 do 
know that, within the time I held the office of marshal for the dis¬ 
trict of Delaware, that, on the seventeenth day of September, A. 
D., 1843, I served upon John Corkran and Edward Power, as ten¬ 
ants in possession of the Pea Patch island, a w r rit of scire facias , 
issued out of the district court of the United States for the district 
of Delaware, and directed to ihe marshal to revive a judgment in 
' ejectment in favor of the United States; and also, on the twenty- 
seventh day of November, in the same year, 1843, by virtue of a 
writ of habere facias 'possessionem , issued out of the above named 
court, and directed to the marshal of the district, I turned the 
same John Corkran and Edward Power out of possession of the 

Pea Patch island, and placed a certain lieutenant, - Harrison, 

of the United States army, in possesion of the same island. The 
abovenamed writs were severally served and executed on the island. 

To the eleventh interrogatory, the deponent answers: ^ 

I believe the State of Delaware has claimed and exercised entire 
and exclusive jurisdiction over the river Delaware to low water 
mark on the Jersey shore within the circle, with the single excep¬ 
tion of such special jurisdiction as belongs to the United States 
government. 

To the twelfth interrogatory, the deponent answers: 

I do not know. 

To the thirteenth interrogatory, the deponent answers: 

The citizens of Delaware have used the river within the circle 
for fishing and fowling, under a claim of right existing in Dela¬ 
ware. I never heard of an instance, nor do I believe there ever 
was an instance, in which the State failed to exercise her jurisdic¬ 
tion over those parts of the river when called upon to do so. 

To the fourfeenth interrogatory, the deponent answers: 

My information is not sufficient to enable me to answer the mat¬ 
ters contained in this interrogatory. 

To the last interrogatory, the deponent answers. 

I know of nothing further that can benefit the United States in 
this cause. 

NATHL. WOLFE. 

Th e said Nathaniel Wolfe, being conscientiously scrupulous of 
taking an oath, was duly affirmed, examined, and he subscribed his 



90 


[ 21 ] 


\ 


name hereto, this sixth day of December, in the year of our Lord, 
one thousand eight hundred and forty-seven, before me, 

JAMES C. MANSFIELD, 

Commissioner. 


Deposition of the Hon. James Booth, Chief Justice of the State of 
Delaware, a witness produced, duly sworn and examined at his 
office in the town of New Castle, on the eighth day of Novem¬ 
ber, A. D. 1847, by virtue of a commission to James C. Mans¬ 
field, issued by the Hon. John Sergeant, arbitrator, in regard to 
the settlement by arbitration of the title now in dispute of the 
Pea Patch island, by and between William L. Marcy, Secretary 
of War, on the part of the United States, of the one part, and 
James Humphrey of the other part. 

• 

To the first interrogatory, the deponent answers and says: 

The deponent is fifty-seven years of age, his place of residence is 
in the town of New Castle. He was born there, and, with the ex¬ 
ception of four years, when he was a student at Princeton college, 
and abo*t fifteen months which he spent at Litchfield, in the State 
of Connecticut, as a student in the law school, then under the di¬ 
rection of the late Judge Reeve and Judge Gould of that State, this 
deponent has resided all his life in the town of New Castle. He 
at present holds the commission of Chief Justice of the State of 
Delaware, which he accepted the last of March, 1841; prior to that 
period he was engaged in the practice of the law, in the courts of 
the State of Delaware. 

To the second interrogatory, the deponent answers: 

He well knows the Pea Patch island, and has known it from his 
boyhood. When he first knew it, it was an island or mud fiat, over¬ 
grown with reeds, and almost the whole of it was often overflowed 
by very high tides in the Delaware river. Deponent does not re¬ 
member precisely when the United States took possession of the 
island, but believes it was about the close of the late war between 
the United States and Great Britain, or soon after the treaty of 
Ghent. It was, at the time the United States took possession of 
it, covered with reeds, and was a harbor or place of refuge for in¬ 
numerable crows. It was worth nothing to a private citizen at that 
time, not even the expense of a survey. 

To the third interrogatory, this deponent, looking on the paper 
marked A, now shown to him by the commissioner, answers and 
says: 

That he has seen the said paper writing among the papers of his 
father, the late Chief Justice Booth, during his life time and since 
his decease. The body of that part of the said paper writing which 
purports to be an acknowledgment, under the hand and seal of the 
late Matthew Pierce, tbatJames Booth, this deponent’s father, was 
entitled to a moiety of the Pea Patch island, is in the proper hand¬ 
writing of this deponent’s father, the said James Booth, now de- 



91 


[ 21 ] 

ceased. Deponent, in his boyhood, and since his coming of age, 
has often heard his said father speak of the said Pea Patch island. 
According to the best of deponent’s remembrance and belief, has 
heard him say at different times that he held a warrant for its loca¬ 
tion, that it would belong to him if he would go to the trouble and 
expense of a survey, but that it was not worth the expense; that if 
surveyed and a patent obtained it would be valueless without a 
very strong embankment, and that no embankment could stand 
against the storms of the Delaware, unless a very great expense 
was incurred, and wholly beyond his means. This deponent has 
said, particularly when some discussion took place in Congress 
respecting the title to the Pea Patch island, that he had formerly 
seen the warrant for the survey or location of the island by the 
name of the Pea Patch island in his father’s possession, and also 
on record in the recorder’s office at New Castle. What has be¬ 
come of the warrant this deponent is unable to say. He has heard 
that within the last two months a search has been made for the re¬ 
cord of the said warrant, in the recorder’s office at New Castle, by 
Cornelius D. Blaney, the late recorder, and that it could not be 
found. This induces this deponent to doubt the accuracy of his 
recollection in this respect, although his impression and belief are 
that he must have seen said warrant. The reason why the warrant 
was £not actually located he has already stated, as having been 
derived from his father, namely, the expense of a survey, and the 
vast expense necessarily to be incurred in embanking the island. 
A survey was certainly necessary under the laws of the State of 
Delaware, to perfect the title, and deponent supposes the island 
was abandoned for reasons before mentioned. 

To'the fourth interrogatory the deponent answers and says: 

That after the United States took possession of the Pea Patch 
island, and when he was engaged in the practice of the law, the 
process of the courts of the State of Delaware was often executed 
by the sheriff of Newcastle county, and his deputies, on said island. 
It was always considered to be within the bailiwick of said sheriff. 
This deponent has understood the fact to be so, but never was 
present, nor can he specify the particular cases in which said pro¬ 
cess was served as aforesaid. 

To the fifth interrogatory the deponent answers and says: 

That ever since the Pea Patch island has been inhabited, he has 
always understood, and believes it to be true, that persons living 
there have been assessed and taxed as citizens of the State of 
Delaware, and voted in Red Lion hundred. He has the impres¬ 
sion on his mind, and believes it to be true, that on the day of a 
general election, many years ago, some persons then residing and 
working on the Pea Patch island, offered to vote at Newcastle; 
that their votes were refused on the ground that, if entitled to vote 
at all, their proper place of voting, under the election laws of the 
State of Delaware, was in Red Lion hundred. 

To the sixth interrogatory the deponent answers and says: 

That he has often seen General Joseph Bloomfield, during the 
late war between the United States and Great Britain; that during 


92 


[ 21 ] 

the years 1813, and 1814, he was several times in the town of New¬ 
castle; he was at one time the governor of the State of New Jersey. 
Deponent, when he was.a student at Princeton college, had often 
seen him at Princeton on various occasions; that he resided either 
at Burlington, or Trenton, New Jersey; deponent believes at Bur¬ 
lington. When he visited Newcastle, in 1813, or 1814, deponent 
believes, according to the best of his recollection, that he was the 
commander of a military district, which then included the State of 
Delaware; but this deponent was not with him when he visited the 
Pea Patch island, nor has he any recollection of Colonel Bloomfield 
Laving visited it. This deponent is under the impression that 
General Swift, who deponent believes resided at Brooklyn, oppo¬ 
site New York, in 1816, with several other gentlemen, visited this 
island; but deponent cannot say positively at what time. Depo¬ 
nent has no knowledge of General Bloomfield’s going to Dover, 
but has heard and believes he did so, in reference to the title of 
the State of Delaware to the Pea Patch island. Deponent knows 
nothing of any other matters in this interrogatory, except that at 
that time, and prior to the year 1819, or 1820, he never heard the 
title of the State of Delaware to the Pea Patch island called in 
question. 

To the seventh interrogatory the deponent answers and says: 

The courts, lawyers, and public officers, in the State of Dela¬ 
ware, and particularly in Newcastle county, always considered and 
held that the title of the State extended within the twelve mile 
circle, around the town of Newcastle, to low water mark on the 
Jersey shore of the river Delaware; that he never heard the title 
or jurisdiction of the State over that part of the river Delaware, 
doubted, or called in question by any court, public officer, or 
lawyer, in the State of Delaware. Deponent knows that writs have 
frequently been issued out of the courts of said State, to seize 
goods under the attachment laws of this State, and to arrest per¬ 
sons for debt on board of vessels, within the twelve miles circle, 
and never heard a question made, or doubt expressed before any 
court in the State of Delaware against the title and jurisdiction of 
the State in these respects. Such process was often issued, to the 
knowledge of this deponent, by the elder members of the bar of 
the State of Delaware, after he was admitted to the practice of 
the law, and during his practice, has been done by this deponent 
in several instances. 

To the eighth interrogatory the deponent answers and says : 

That since the Pennsylvania, a ship of the line built at Philadel¬ 
phia, dropt down the Delaware and proceeded to sea, he has heard 
and understood that the deepest ship channel of the Delaware 
river, opposite the Pea Patch island, was between the island and 
the Jersey shore; deponent well remembers seeing the Pennsylva¬ 
nia proceed down the Delaware, and has understood and believes 
that she took the eastern channel, but is unable of his own know¬ 
ledge to say that the fact was positively so. As to the rest of this 
interrogatory, deponent cannot answer of his own knowledge. 

To the ninth interrogatory the deponent answers and says : 


93 


[ 21 ] 

That Bombay Hook island is in the State of Delaware, and has 
always been held under the Delaware title, and occupied by per¬ 
sons who were taxable and voters in the State of Delaware. De¬ 
ponent recollects that, a number of years ago, several writs of 
replevin were issued out of one of the courts at Newcastle, and 
executed by the sheriff of Newcastle county, at the suit of some 
persons then living on Bombay Hook, whose goods had been 
distrained on for rent, claimed by the heirs of Mr. Jonathan 
Smith, of the city of Philadelphia. Deponent says that Reedy 
island is in the county of Newcastle, and a part of the State of 
Delaware, but does not know T that it has been ever held or occupied 
by any person. 

To the tenth interrogatory the deponent answers and says : 

To this interrogatory the deponent cannot answer, further than 
he has deposed to in his answer to the fourth interrogatory. 

To the eleventh interrogatory the deponent answers and says: 

That the State of Delaware has always, from his earliest recol¬ 
lection, claimed jurisdiction and title over the river Delaware and 
soil thereof, within the twelve mile circle, to low w r ater on the 
Jersey shore. Such jurisdiction has always been exercised when 
required. 

To the twelfth interrogatory the deponent answers and says : 

That he has no recollection of any house or building being 
erected on the Pea Patch island, and is confident that none such 
was erected before the time the United States took possession of 
it; but in what year precisely the United States did take possession 
of it, this deponent cannot state positively. Prior to that tim6 
the island never was embanked, and before it was embanked by 
the United States, no common or ordinary building could have 
stood on it; any such building- would have been carried away by 
the tides and storms of the river Delaware. This deponent never 
heard of any person being in permanent possession of the said 
island, before the time the United States took possession of it. 

To the thirteenth interrogatory the deponent answers and says: 

That the citizens of the State of Delaware have always fished and 
fowled on the river, and used it within the twelve mile circle, 
under a claim of right to the river existing in the State of Dela¬ 
ware. That the State has, from time to time, passed laws to regu¬ 
late fisheries on it, and has never failed, to claim and exercise her 
jurisdiction and title over it to low water mark on the Jersey 
shore, within the said twelve miles circle, when there was any 
cause or occasion to do so. 

To the fourteenth interrogatory the deponent answers and says: 

The lands in the State of Delaware are generally held under the 
title of William Penn and his heirs. Titles were granted under the 
proprietary government of William Penn and his heirs, by warrant, 
survey, and patent. In actions of trespass, where the title came 
in question, and in actions of ejectment, the plaintiffs formerly, as 
deponent has understood, incepting their paper title, always com¬ 
menced by showing a title out of the proprietary. But for many 
years past this rule has not been adhered to, and the plaintiff now 



94 


[ 21 ] 

traces his title no further back than to the person who was last ac¬ 
tually seized and possessed of the land in controversy, as the owner 
thereof. There never was any doubt or question, so far as the 
knowledge and information of this deponent extends, of the justice 
and legality of the Penn title to the lands within the State of Del¬ 
aware. The Penn title, under the duke of York, was always con¬ 
sidered, in this State, the true title to the lands and waters in the 
State of Delaware; although this deponent has seen on record some 
old title papers for lands in this State from the aborigines of the 
country, and from Sir Edmund Andross, before the date of the deed 
from the duke of York to William Penn. This deponent has seen 
many titles incepted in court by the Penn warrants, surveys, and 
patents, and has always understood and believed that all lands 
and waters in the State of Delaware, within the twelve miles circle, 
are held under the Penn title. 

To the last interrogatory the deponent answers and says: 

This deponent does not know, nor is there anything else now 
occurring to his mind, that he heard, or that he can relate, which 
will benefit the United States in this cause. 

JAMES BOOTH. 

Duly sworn, examined, and subscribed to, at Newcastle, this 
eighth day of November, in the year of our Lord one thousand 
eight hundred and forty-seven. 

Before me, JAMES C. MANSFIELD, 

Commissioner. 

December 16, 1796. 

Sir: Please to issue a warrant in my name for two hundred acres 
ot marsh, to be laid on an island situated about five miles below the 
town of Newcastle, in the river Delaware, called and known by 
the name of the Pea Patch. 

MATHEW PIERCE. 

James Booth, Esq., 

Recorder of the county of Newcastle. 

In consideration of James Booth relinquishing his fees on the 
above warrant, and subsequent proceedings thereon, and also de- 
fraying a moiety of other charges that may arise in obtaining a title 
to the above tract, I do hereby acknowledge that he is to be enti¬ 
tled to a moiety of the same premises in fee. 

Witness my hand and seal, this 16th December, 1796. 

MATHEW PEARCE. [ SEAL.] 

Witness present, Thos. H, Clark. 


95 


[ 21 ] 


EXHIBIT No. 2. 


State of Delaware, 

Newcastle county. 

In the supreme court of the State of Delaware, in and for 
the county of Newcastle.—Pleas before the Hon. Kensey 
Johns, Isaac Cooper, and Richard Cooper, esquires, jus- 
[seal.J tices of the supreme court of the State of Delaware, held 
at Newcastle, for the county of Newcastle, of the April 
term, in the year of our Lord one thousand eight hun¬ 
dred and eleven. 

Among the records and proceedings whereof are the following: 

Read, jr., Mark Richards ) 

vs. 

Rogers. Florimond Dusar, otherwise 

called F. Dusar. J 

Be it remembered that, heretofore, to wit, on the twenty-second 
day of February, in the year of our Lord one thousand eight hun¬ 
dred and eleven, the said Mark Richards, by George Read, his at¬ 
torney, in pursuance of the act of the general assemby, in such 
case made and provided, filed in the said supreme court a paper 
writing, in the words following, to wit: 

Newcastle County, ss: 

Personally appeared Christian J. Brinckle, and maketh affirma- 
mation that Florimond Dusar, otherwise called F. Dusar, who 
resides out of this government, is justly indebted unto Mark Rich¬ 
ards in a sum of money exceeding thirty-two dollars, and that he 
avoids coming into this government lest he should be taken to an¬ 
swer his just debts, as it is believed. 

C. J. BRINCKLE. 

Affirmed and subscribed at Newcastle, February 22, A. D. 1811, 
before 

C. D. BLANEY, Jr., Clerk. 

Whereupon the said Mark Richards, by his attorney, George 
Read, prosecuted and sued forth out of the said supreme court the 
writ of the State of Delaware of attachment against non-residents, 
directed to the sheriff of Newcastle county, in the words following, 
to wit: 

Newcastle County, ss. 

Delaware to the sheriff 
greeting: 

We command you that you attach Florimond Dusar, late of your 


r The State of 

[l. s.J j 


of Nevjcastle county , 





to wit: 


96 


[ 21 ] 

county, otherwise called F. Dusar, by all his goods and chattels, 
rights and credits, lands and tenements, in whose hands or posses¬ 
sion soever the same may be found in your bailiwick, so that he be 
and appear before the justices of our supreme court at Newcastle, 
on Tuesday, the eleventh day of April next, to answer Mark Rich¬ 
ards of a plea of trespass on the case, &c., and have you then there 
this writ. 

Witness the Hon. Kensey Johns, esq., at Newcastle, the eighth 
day of December, in the year of our Lord one thousand eight hun¬ 
dred and ten. 

Issued February 22, 1811. 

DANIEL BLANEY, 

Clerk Supreme Court. 

Upon which said writ was endorsed the words and figures fol¬ 
lowing, to wit: 

“ Bail in $2,600.” 

And afterwards, to wit: on the sixth day of March, in the year 
of our Lord one thousand eight hundred and eleven, comes the said 
defendant before the Hon. Kensey Johns, esq., chief justice of the 
said supreme court, at his chambers, and with him a certain James 
Riddle, of the town of Newcastle, who acknowledges himself to be 
held and bound unto the said Mark Richards in the sum of two 
thousand six hundred dollars, to be levied of his goods and chat¬ 
ties, lands and tenements. 

Upon condition that, if the said Florimond Dusar shall be con¬ 
demned in the above action, that lie shall pay all the condemnation 
money and the costs, to the value of the goods and chatties at¬ 
tached, or render himself a prisoner to the sheriff of Newcastle 
county; and, if he fails to do so, he, the said James Riddle, under¬ 
takes to do it for him. 

Taken and acknowledged, March 6, 1811. 

And afterwards, to wit: on Tuesday, the eleventh day of April, 
in the year aforesaid, and the day of the return of the aforesaid 
writ comes into court here, the said Mark Richards, by his attor¬ 
ney aforesaid, and the sheriff of Newcastle county aforesaid, to 
whom the foregoing writ was in form aforesaid directed, and makes 
return thereof to the court here, thus endorsed, to wit: 

Attached as per inventory and appraisement—annexed, to wit: 
of foreign attachments, No. 53, April terra, 1811. 

So answers 

TH. PERKINS, Sheriff. 

Inventory and appraisement of the goods and chattels of Flori- 
roond Dusar, als. F. Dusar, attached at the suit of Thomas Mifflin, 
February 25, 1811, by 


T. PERKINS, Sheriff. 


97 


[ 21 ] 

To the one-half of the brig Caroline, Captain Blodget, * 

master, together with her rigging, sails, boats, &c. $3,500 

To 300 boxes sugar..... 15,000 

18,500 


Appraised by us, the subscribers, this 23d day of February, 
eighteen hundred and eleven^ as witness our hands. 

HERM. WEBB, 
JOHN BATES. 

And thereupon the said plaintiff, by his attorney aforesaid, de¬ 
clares against the said Florimond Dusar, in words following, to 
wit: 

• 

Newcastle County, ss. 

Of the term of Jipril , in the year of our Lord , 1811. 

And whereupon the said Mark Richards, by George Read, his at¬ 
torney, complains that whereas the aforesaid Florimond Dusar, the 
sixteenth day of October, in the year of our Lord one thousand 
eight hundred and ten, at the county aforesaid, did make his certain 
note in writing, called a promisory note, with his proper hand 
thereto subscribed, bearing date thje same day and year. And the 
same note to the said Mark Richards, did, and there did, deliver, 
by which same note the aforesaid Florimond Dusar did promise to 
pay unto the said Mark Richards, by the name of Mr. Mark Rich¬ 
ards’s order, without defalcation, the sum of thirteen hundred and 
ninety-one dollars and eighty-five cents, lawful money of the State 
of Delaware, one hundred and twenty days after the date, for value 
received: By reason whereof, and by force of the statute in such 
cases made and provided, the said Florimond Dusar became liable 
to pay to the said Mark Richards the aforesaid thirteen hundred 
and ninety-one dollars and eighty-five cents, according to the tenor 
and effect of the note aforesaid; and so being liable, the aforesaid 
Florimond Dusar, in consideration thereof, after, to wit: the same 
day and year last mentioned, at the county aforesaid, upon himself 
did assume, and to the said Mark Richards, then and there did 
faithfully promise that he, the aforesaid Florimond Dusar, the afore¬ 
said thirteen hundred and ninety-one dollars and eighty-five cents, 
unto the said Mark Richards, would well and truly pay, and con¬ 
tent, according to the tenor and effect of the same note. Never¬ 
theless, the aforesaid Florimond Dusar, his promise and assumption 
aforesaid, in form aforesaid made, not regarding the sum of thir¬ 
teen hundred and ninety-one dollars and eighty-five cents, nor any 
part thereof, to the said Mark Richards hath not paid, although to 
do the same, the aforesaid Florimond Dusar, after the expiration 
of the time limited and appointed in the said note for the payment 
of the said sum of thirteen hundred and ninety-one dollars and 
eighty-five cents, to wit: on the and often 

afterwards, at the county aforesaid, by the said Mark Richards was 
.requested, but the same to him to pay, hitherto hath altogether re- 

* FT 







98 


[ 21 ] 

fused, a*nd still doth refuse, to the damage of the said Mark Rich¬ 
ards, fifteen hundred dollars, and therefore he brings suit. 

0 

G. Reed, for plaintiff. John Doe, Richard Roe, pledgers. 

And thereupon the said plaintiff, by his attorney aforesaid, prays 
that the said defendant may answer to the declaration of him, the 
said plaintiff, in the plea aforesaid; whereupon it is ruled by the 
court here, that the said defendant answer to the declaration of the 
said plaintiff in the plea aforesaid, or judgement will be rendered 
against him by default. Whereupon the said defendant, by his at¬ 
torney, James Rogers, esq., answers the plea aforesaid, as follows: 

1. Non assumpsit. 

3. Payment. 

2. Discount, and 

4. Act of limitation. 

As to the first plea, plaintiff joins issue. As to the second plea, 
the plaintiff replies no such account and act of limitation. As to 
the third, non-payment; and to the fourth, replications generally 
and specially. Rejoindtrs as to the three last pleas and issues. 
Thereupon further process of, and upon, the premises aforesaid, 
between the parties aforesaid, by consent of the said parties, by 
their attornies here, and by ord^r of the court here, thereon, is 
continued from term to term, until November term, 1812. And 
now, to wit: November 10, 1812. Thirty jurors having been, by 
the sheriff of this county, duly summoned, returned and empan- 
nelled, out of which number a jury, to wit: John Bennett, John 
Penson, Jared Chesnut, James Thompson, Carson Wilson, Abraham 
Egbert, Alexander Moody, John Herdman, William Welden, jun., 
Christopher Weaver, Tenas Wells, and Richard Sixton, being duly 
drawn, who, after all causes of challenge allowed, did appear at 
the bar, and were duly sworn and affirmed to try the issues. After¬ 
wards, to wit: the same day, by consent, a juror withdrawn, leave 
to amend the narr., and leave granted to the defendant to add 
pleas by the first rule day. And thereupon, the plaintiff amends 
his narr. in the words following and continued: u amend the 
declaration pursuant to the general leave in the suit, Mark Richards 
against Florimond Dusar, in tie supreme court for Newcastle 
county, at Philadelphia, to wit: in laying the venue, this imme¬ 
diately preceeding the venue, and so in like manner, where the al¬ 
lusion to the venue occurs again in narr., and also the following 
money counts. 

And whereas, also, the said Florimond after, to wit: The day 
of , at Philadelphia (in the year of our Lord eighteen hun¬ 
dred and ) aforesaid, to wit: At Newcastle county aforesaid, 

was indebted to the said Mark in another sum of , money 

aforesaid for money lent and advanced to the said Florimond by 
the said Mark, at ihe special instance and request of the said Flori¬ 
mond before that time; and, being so indebted, he, the said Flori¬ 
mond, in consideration thereof, after, to wit: on the same day anti 
year, at Philadelphia aforesaid, to wit: at Newcastle county afore- 


99 


[21 J 

said, undertook and faithfully promised to said Mark to pay him. 
the said last mentioned sum of' money when he should be thereunto 
after requested; and whereas,* also, the said Florimond after, to 
wit: on the same day and year last aforesaid, at Philadelphia 
aforesaid, to wit: at Newcastle county aforesaid, was indebted to 
the said Mark in another sum of money aforesaid, for 

money by the said Mark before that time laid out, expended, and 
paid for the said Florimond, and at his special instance and 
request; and, being so indebted, he, the Florimond, in considera¬ 
tion thereof, after to wit: on the same day and year aforesaid, at 
Philadelphia aforesaid, to wit: at Newcastle county aforesaid, 
undertook and faithful y promised the said Mark to pay him the 
said last mentioned sum of money, when he should be thereto after 
requested; and whereas, also, the said Fforimond after, to wit: 
the day of , in the year of our Lord one thousand eight 

hundred and , at Philadelphia, to wit: at Newcastle county 

aforesaid, was indebted to the said Mark, in the further sum 
of money aforesaid, for money by the said Florimond 

before that time had and received to and for the use of the said 
Mark; and being so indebted, he, the said Florimond, in considera¬ 
tion thereof, to wit: on the same day and year last aforesaid, at 
Philadelphia aforesaid, to wit: at Newcastle county aforesaid, 
undertook and faithfully promised to pay him the last mentioned 
sum of money when he should be thereto after requested.’ 7 

And then substitute as a conclusion to the whole declaration: 

u Nevertheless, the said Florimond, his several promises and 
assumptions aforesaid, in form aforesaid made, not regarding, but 
contriving, and fraudulently intending, craftily and subtily, to 
deceive and defraud the said Mark in this respect, hath not yet 
paid the said several sums of money, or any part thereof, to the 
said Mark, although so to do, he, *he said Florimond, was requested, 
by the said Mark after, to wit: On the day of , in the 

year of our Lord eighteen hundred; and often after, to wit: At 
Philadelphia aforesaid, to wit: At Newcastle county aforesaid; 
but he to do this, hath thereto -wholly refused and still re¬ 
fuses, &c., &c. 

. G. READ, per plaintff. 

And the defendant pleads additionally as per plea filed, to wit: 

And now, to wit, this sixteenth day of January, in the year of 
our Lord one thousand eight hundred and thirteen, comes the said 
Florimond Dusar, by James Rogers, his attorney, and says: That 
the said Mark Richards ought not further to maintain his action 
aforesaid against him the said Florimond Dusar, because he says 
that, after the third day of November last past, from which day, 
until the sixth day of April next, in April term next, the action 
aforesaid is continued, to wit: on the nineteenth day of November, 
in the year o# our Lord one thousand eight hundred and twelve, 
he, the said Florimond Dusar, was discharged as an insolvent 
debtor, by virtue of an act of the general assembly of the common¬ 
wealth of Pennsylvania, entitled an act for the relief of insolvent 


100 


[ 21 ] 

debtors residing in the city and county of Philadelphia, and their 
creditors, he, the said Florimond Dusar having, in all things, con¬ 
formed to the provisions of the said act. 

Wherefore the said Florimond Dusar prays judgment, of the said 
Mark Richards ought to have or maintain his action aforesaid 
against him, the said Florimond Dusar. 

JAMES ROGERS, 

Attorney for defendant. 

Be it remembered that, on this fourteenth day of January, in the 
year of our Lord one thousand eight hundred and thirteen, person¬ 
ally appeared before me, John Barker, esq., mayor of the city of 
Philadelphia, the above named Florimond Dusar, and maketh oath 
that the substance and matter of fact of the above plea is true. 

. ' FLORIMOND DUSAR. 


In testimony whereof, I have hereunto set my hand and caused 
r -| the seal of the said city to be affixed, the day and year 
L L ' s ’J aforesaid. 


JOHN BARKER, Mayor. 


And the said Mark Richards, as to the said plea of the said Flo- 
rimond Dusar by him above pleaded after the last continuance of 
the action aforesaid, saith: That the same and the matter therein 
contained, in the manner and form as the same are last above 
pleaded and set forth, are not sufficient in law to bar or preclude 
him, the said Mark Richards, from having or maintaining his afore¬ 
said action thereof against iin, the said Florimond Dusar, and 
that he, the said Mark Richards, is not bound by the law of the 
land to answer the same, and this he, the said Mark Richards, is 
ready to verify. Wherefore, for want of a sufficient plea in this 
behalf, he, the said Mark Richards, prays judgment and his dam¬ 
ages, by reason of the not performing the said promise and assump¬ 
tion in the said declaration mentioned, to be adjudged to him, &c.- 
And the said Mark Richards, according to the form of the statute 
in such case made and provided, states and shows to the court here 
the following causes of demurrer to the said plea after the last 
continuance of the action aforesaid: that the said plea does not 
state that the said Florimond Dusar was a citizen of the common¬ 
wealth of Pennsylvania, and had resided in the city or county of 
Philadelphia two years next before the time of presenting his pe¬ 
tition, hereinafter mentioned, for the benefit of the act of assembly 
of the said commonwealth, the title whereof is set forth in the 
same plea; and that the same plea does not state that a petition 
was exhibited by the said Florimond Dusar to the commissioners 
appointed by the governor of the said commonwealth, under the 
authority of the said act, to execute all and singular the duties and 
powers granted, enjoined, and required by the provisions of the 
said act, setting forth his, the said Florimond, belief of his insolv¬ 
ency, and prating that he might be permitted to assign all his 
estate and property for the benefit of his creditors, and be dis- 


101 


[ 21 ] 

charged by virtue of the said act; and that an assignment was made 
by the said commissioners of all the estate, real, personal, and 
mixed, of the said petitioner to the persons in the manner and form 
and under the exceptions prescribed in the said act cf assembly; 
and that the said plea does not state that the said commissioners 
gave to the said Florimond Dusar a certificate, under their hands 
and seals, that the said Florimond had jn all things conformed to 
and was discharged by virtue of the said act; and that the said plea 
does not conclude with a verification of the matter thereof; and 
that the said Florimond Dusar does not, in the conclusion of the 
said plea, pray judgment of the said Mark Richards ought further 
to have and maintain his action aforesaid, &c., but wholly omits 
the word further in the same conclusion of the said plea; and that 
no venue is laid in the said plea; and that the said plea does not 
state the tribunal and authority by which the said Florimond Du¬ 
sar was discharged as an insolvent debtor, nor the place where he 
was so discharged, nor how or in what manner he was discharged 
as aforesaid; and that the said act of the general assembly, the title 
whereof is stated in the said plea, is contrary to the constitution of 
the said commonwealth of Pennsylvania, and, therefore, unconsti¬ 
tutional and void; and, also, that the said plea, after the last con¬ 
tinuance of the action aforesaid, is, in other respects, uncertain, in¬ 
formal, and insufficient, &c. 

G. READ, per Plaintiff. 

And joinder in demurrer general. And thereupon further process 
of and upon the premises aforesaid, by the consent of the said par¬ 
ties by their attorneys aforesaid, and by order of the court here 
thereon, is further continued until the November term, 1813. 

November term , 1813, continued , fyc. 

April 14, 1814, after argument of the matter of the demurrer, on 
motion of the counsel for defendant, leave granted to amend the 
plea in such manner only as it is amendable by law; and, after¬ 
wards, the court considering the said plea as amended to the ex¬ 
tent and in such manner only as by law the defendant now has a 
right to amend the same; and it appearing to the court here that 
the cause of the said action is a promisory note, it is ordered by 
the court, in lieu of a writ of inquiry of damages, that it be, and 

hereby, referred to the clerk of this court to ascertain the quan¬ 
tum of damages for which final judgment be rendered, as well by 
occasion of the premises, as for his costs and charges by him 
about his suit in that behalf expended, and report the same to the 
court. And after, to wit: on the same day and year, it appearing 
to the court, by the report of the clerk, that the damages in the 
said cause amount to one thousand six hundred and fifty-five dol¬ 
lars and eighty-three cents, and that the costs and charges therein, 
by his taxation, amount to forty-four dollars and twenty-seven, 
cents, > 

Therefore, it is considered by the court here, that the said plain- 


102 


[ 21 ] 

tiff recover against the said defendant the sum of one thousand 
seven hundred dollars and ten cents for his damages, costs, and 
charges aforesaid, and said defendant, in mercy, &c.; and the sa d 
plaintiff have thereof his execution, &c. And afterwards, to wit: 
on the ninth day of May, A. D., 1814, the said Mark Richards, by 
his attorney aforesaid, prosecuted, and sued forth out of the said 
supreme court of, and upon the judgment, so as aforesaid, re¬ 
covered the writ of the State of Delaware, of capias ad satisfa¬ 
ciendum , directed to the sheriff of Newcastle county, in the words 
following, to wit: 

Newcastle county, ss. 

-- i The State of Delaware to the sheriff of Newcastle county , 
t ' J greeting: 

We command you that you take Florimond Dusar, otherwise 
called F. Dusar, late of your county, if he shall be found in your 
bailiwick, and him safe keep, so that you may have his body be¬ 
fore the justices of our supreme court, at Newcastle, on Monday, 
the thirty-first day of October next, to satisfy Mark Richards, one 
thousand seven hundred dollars and ten cents, lawful money of the 
State of Delaware, which, to the said Mark Richards, in our said 
court, before the said justices, were adjudged for his damages, 
costs, and charges, which he had, by occasion of the non-per¬ 
formance and assumption to the said Mark Richards, by the afore¬ 
said Florimond Dusar, otherwise called F. Dusar, at the county 
aforesaid made, whereof the said Florimond Dusar, otherwise 
called F. Dusar, is convicted, as it appears of record; and have 
youthen there this writ. Witness, the Hon. Kensey Johns, esq., at 
Newcastle, the fourteenth day of April, in the year of our Lord, 
one thousand eight hundred and fourteen. Issued, May 9, 1814: 
D. Blarney, clerk supreme court. At which said Monday, the 
thirty-first day of October then next, and the day of the return of 
the said writ, the said sheriff of Newcastle county, to whom the 
said writ in form aforesaid was directed, made return thereof to the 
said court, thus endorsed, to wit: 

Non est inventus. So answers 

WM. MOORE, Sheriff. 

And now, to wit, April 16, 1815, on motion of James R. Black, 
esq., of counsel for James Biddle, rule to show cause why an ex¬ 
amination should not be entered on the recognizance of bail, en¬ 
tered into in this case, continued, October; rule continued, April, 
1814; rule continued, November; rule made absolute, and exone¬ 
ration entered. • 

And, among the papers filed in the above cause, and of which no 
,cntry is upon the docket, is the following, to wit: 


103 


[ 21 ] 


In the high court of errors and appeals of the State of Delaware — 

August term , 1815. Rgos. V. D. 

Florimond Dusar, otherwise called F. Dusar, defendant below/ 

plaintiff in error, 
vs. 

Mark Richards, plaintifF below, defendant in error. 

May 10, 1815.—Writ of error to the justices of the supreme 
court of the State of Delaware, for Newcastle county. 

May 10, 1815.—Writ and citation issued. 

August 7, 1815.—Record received and filed at the same time. 

Sheriff Moore returns non est inventus , August term, 1815. The 
defendant appears by George' Read, esq., his attorney, and by 
consent, time extended for assignment of errors until the first day 
of October next. October 1, 1815, assignment of errors filed and 
continued. ™ 

And now, to wit, this twelfth day of January, in the year of our 
Lord one thousand eight hundred and sixteen, this cause coming 
to be heard, and the same being argued by counsel learned in the 
law, on both sides. It is considered by the court that the judg¬ 
ment of the court below be reversed and annulled; and that the 
plaintiff below, the defendent here, take nothing by his writ; and 
that the defendent below, the plaintiff here, go thereof without 
day, for that the oath, on the foundation of which the attachment 
was issued from the court below, was not taken before the clerk or 
a judge of the supreme court, and, moreover, was not according to 
form in such case provided by the attachment law. 

In testimony that the above is a true copy of the docket entries 
in the above case, I have hereunto set my hand, and 
affixed the seal of the high court of errors and ap¬ 
peals, at Dover, the twelfth day of January, in the 
year of our Lord one thousand eight hundred and six¬ 
teen. 

PRESLEY ALLEN, Clerk. 


|"SEAL, j 


Newcastle county, ss. 

I, Samuel Fiddle, prothonotary of the superior court of the 
State of Delaware, in and for Newcastle county, hereby certify 
that the preceding pages contain a true copy of the record and pro¬ 
ceedings in the aforesaid stated case, as the same now remain in 
the said superior court. 

In testimony whereof, I have hereunto set my hand, and affixed 
the seal of the said superior court, at Newcastle, the twenty-third 
day of September, in the year of our Lord one thousand eight 
hundred and forty-seven. 

SAMUEL BIDDLE, Prot. 

State of Delaware, 

Newcastle county , 

I, James Booth, chief justice of the State of Delaware, and as 
such, the preceding judge of the superior court of the said State, 




104 


[ 21 ] 


hereby certify that the preceding attestation made by Samuel Bid¬ 
dle, esq., prothonotary of the said court within the county of New¬ 
castle, and to which the seal of the said court is affixed, is in due 
form, and by the proper officer. 

In testimony whereof, I have hereunto subscribed my name, at 
Newcastle, the twenty-third day of September, A. D., 1847. 

JAMES BOOTH, C. J. 


/ 


% 




i 
















105 


[ 21 ] 


EXHIBIT No. 3. 

Memorandum of Lease. 

We, the undersigned, do hereby agree with J. T. Hudson, of x4.1ton, 
Illinois, to hold from him, as tenant at will, the island called the 
Pea Patch, upon which Fort Delaware is erecting, and to remove 
from thence quietly at whatsoever time we shall be by him the said 
Hudson or his agent or attorney directed. 

It witness whereof, we have hereunto set our hands and seals, 
this 8th day of December, one thousand eight hundred and thirty— 


ght. 


JOHN COCKRIN. 

l. s. 

LEWIS GREBLE. 

L. s. 

JOHN PILE. 

L. s. 

B. COOPER. 

L. S.' 

JAS. CALVIN. 

L. S. 

EDWARD POWERS. 

[~L. S.' 

WILLIAM POWELL. 

L. S. 

N. DERICKSON. 

L. S. 

WM. LONG. 

L. S. 

ISAAC JONES. 

L. S. 

In the presence of— 


Samuel Cooper. 


Samuel Smith. 



New York, November 26, 1838. 

Sir: I had the honor to receive yours of the 20th, a few days 
since, and very much regret that, under present circumstances, I 
am made (unable) to comply with the suggestion contained in it. 

I have already been obliged, by the hard course government has 
pursued towards me, to make such arrangements as render it indis¬ 
pensable that I should take possession of the property in question. 
But this I am still willing and desirous to do, with as little incon¬ 
venience to the United States as possible. 

If, therefore, upon serving my writ, the ofhcerin command should 
be authorized and willing to give me a stipulation that he will hold 
under me as tenant at will, and remove whenever required by me, 
I shall not insist upon the actual removal of himself and command, 
or disturb the works, until circumstances may render it necessary. 

With the highest respect, your most obedient servant, 

J. T. HUDSON. 

To the Honorable the Secretary at War. 


This, and the following four documents, make exhibit No. 5. 






106 


[[ 21 ] 

Sir: In accordance with your wish, that you should be apprised 
of the time when the Pea Patch island would be taken possession 
of, I will state that it is my purpose to serve the writ any time 
between this and the first of December, that will best suit your 
convenience. 

The process has been delayed until the close of the working sea¬ 
son, in order that no unnecessary interruption or delay should be 
experienced by government. 

If, during the coming session, the United States should see fit to 
purchase of the proprietor, the premises will be returned u in statu 
quo;” if not, they proceed to reimburse themselves for their losses ? 
and improve their property as best they can. 

With the highest respect, your most obedient servant, 

J. T. HUDSON. 

To the Hon. J. R. Poinsett, 

Secretary of War. 


Engineer Office, 
Philadelphia , December 11, 1838. 

Sir: I have the honor to inform you that on Friday, December 
7, the United States marshal took possession of the Pea Patch Is¬ 
land, in execution of a writ of ejectment, issued by the United 
States district court of New Jersey against Henry Belin, and others, 
and in favor of J. T. Hudson, of Alton, Illinois, in whom the court 
have adjudged the title to the Pea Patch to rest. 

On receiving information of this proceeding, I repaired imme¬ 
diately to the Pea Patch, and succeeded in making an arrangement 
with the parties, by w r hich our agents and hands were allowed to 
remain upon the island, upon the householders thereon agreeing to 
remove quietly when required to do so by J. T. Hudson or his at¬ 
torney. A copy of the agreement is enclosed. 

I shall anxiously await instructions from the department. 

I am, sir, your most obedient servant, 

M. C. MEIGS, 
Lieutenant of Engineers . 

Brig. Gen. C. Gratiot, 

Chief Engineer , Washington City, D. C. 


Engineer Department, 
Washington, December 13, 1838. 

Sir: I have the honor to acknowledge the receipt of your letter 
of the 11th instant. 

The Secretary of War sanctions the course you have pursued in 
permitting the inhabitants of the Pea Patch islands to acknowledge 
themselves tenants at will of Mr. J. T. Hudson, and should he re- 




107 [ 21 ] 

quire it, you are authorized to adopt the same with respect to the 
supeiintending engineer, Mr. Belin, but not for yourself. 

You will report immediately to the department the whole of the 
facts in the case, stating the state of the operations at the fort when 
the w r rit of ejectment was served, with the circumstances, the ef¬ 
fect it will have upon the progress of the works, and any circum¬ 
stances you may judge proper to be laid before Congress to enable 
them to act in the premises. 

By order: 

F. A. SMITH, 

Captain and Assistant Chief Engineer. 

Lieut. M. C. Meigs, 

Corps of Engineers , Philadelphia , Pa. 


I. 

Exhibit No. 3. 

To the Honorable Gunning Bedford , esq., judge of the district court 
of the Ujiited States of America in and for the Delaware dis¬ 
trict. 

/ • 

The petition and libel of Abraham Peisch, John William Foussat, 
John Dubany,John Francis Dumas, Thomas Allibone, and Wil¬ 
liam Allibone, trading under the firm of Thomas Allibone & Son, 
Jacob Houpt, Charles Brugiere, (agent for J. A. Tenascon,) James 
Seraphim Duval, and James Pease, all citizens of the United 
States of America, owrners and consignees of divers goods, wares, 
and merchandise, of foreign growth and manufacture, composing 
the cargo imported and brought in the ship Favorite, bound to 
the port of Piladeiphia, within the limits of the United States 
aforesaid, from the port of Bourdeaux, in France, 

Humbly swoweth: 

That the ship Favorite, of and belonging to the port of Philadel¬ 
phia, an American bottom, duly registered according to the laws of 
the United States, of w T hich your petitioners and libellant, Abraham 
Peisch, is the owner, of the burthen of about u two hundred and 
thirty-seven tons,” sailed from the port of Bourdeaux, in France, 
bound for the port of Philadelphia aforesaid, on the fifteenth day 
of September, eighteen hundred and four, under the command of 
William Penrose, master, being laden with and having on board a 
cargo of goods, w^ares, and merchandise of foreign growth and 
manufacture, consisting, according to the bills of lading and in¬ 
voices in the respective possession of your petitioners and libellants, 
ready to be exhibited, and which they pray leave to exhibit to your 
honor, of wine, brandy, sweet oil, cordials, artificial flowers, and 
feathers, silk and other dry goods, of the value of thirty thousand 
dollars, lawful money of the said United States. 



108 


[ 21 ] 

And your petitioners and libellants further show and allege, that 
the said ship Favorite, in the prosecution of her inward voyage 
aforesaid, arrived, on the twenty-fifth day of October, in the year 
aforesaid, in the bay of Delaware, and experienced the effects of a 
very heavy gale of wind, which occasioned the parting of her 
cables, and the said ship being forced on a shore in the said bay, 
where her situation became so perilous that the said William Pen¬ 
rose, her master, deemed it necessary to cut away, and did actually 
cut away, the parts of the said ship by the board; that the said 
ship soon after floated, and was borne and carried by the tide and 
wind off the ground where she struck as aforesaid, and it was then 
discovered that the said ship had, in consequence, sprung a leak, 
which gained so fast, after working the pumps almost four hours, 
that there were eleven feet and one-half foot of water in the hold 
of the said ship at the expiration of the said time; wherefore, the 
said master was induced to leave the said ship then and there in 
the Delaware bay aforesaid, to wit, on the twenty-seventh day of 
the said month October, with his crew, and land on Cape May, in 
the State of New Jersey, after, to wit, on same twenty-seventh day 
of October. 

And your petitioners and libellants further show and allege that, 
afterwards, to wit, on some certain day or days between the said 
^twenty-seventh day of October and the thirtieth day of the same 
month, the said ship Favorite, then being in Delaware bay afore¬ 
said, below low water mark, to wit, on the high seas within the 
jurisdiction of this court, was then and there entered, and the said 
ship and cargo on board of the said ship, consisting of foreign goods 
and merchandise aforesaid, then and there taken possession of by 
John Weir, John McMain, William West, Thomas Howard, John 
Daily, Arthur West, James Rowland, Elisha Riecard, Peter, a black 
man, otherwise called negro Pet, George, a black man, otherwise 
called negro George, William West, the younger, Thomas Rodney, 
William Edwards, Jacob Guner, Samuel Davis, David Seamott, a 

black man, Richard Buley, Martin Hargis, Henry Buly,- 

Purnell, Daniel Rodney, John Parker,* Daniel Woolf, John West, 
Simon Mariner, John McCracken, Isaac Turner, Samuel C. Thomp¬ 
son, William Marshall, David Johnson, Manuel, a black man, 
otherwise called black Manuel, John Driskill, Martin Barry, Simon 
Edwards, the younger, Samuel Thompson-, Barly Art, Simon Ed¬ 
wards, Isaiah, a black man, otherwise called Isaiah, Richard Westly, 
William Ed wards, James Rowland, Samuel Marshall, Henry Maull, 
Hamilton Bull, Joseph Milly, Cook Clampet, John Saunders, and 
Richard Howard, all of Sussex county, in the State of Delaware. 

And your petitioners and libellants further*show and allege, that 
Henry Berry, mate of the ship aforesaid, after leaving the said 
ship as aforesaid, procured at Cape May aforesaid, to wit: 
on the twenty-ninth day of October aforesaid, a shallop, and 
proceeded with the said shallop, having three of the mariners 
belonging to the said ship on board, to the place where the 
said ship then lay aground, in Delaware bay aforesaid, on a shoal 
called the Sheers. That, on approaching the said ship in the shal- 



109 


[ 21 ] 

lop aforesaid, the said Henry Berry quitted the same shallop, and 
went on board the said ship there, in a small boat, with the intent 
and design to save the said ship and cargo; nevertheless, the said 
John Weir, and the said other persons, last herein before named, 
then and there being on board the said ship, then and there refused 
to permit, and actually prevented, the said Henry Berry, and the 
said mariners accompanying him as aforesaid, from attempting to 
save or saving the ship, and cargo on board her as aforesaid, or 
any part thereof; but forced and compelled the said Henry Berry, 
and the same mariners, then and there to leave the said ship forth¬ 
with, and then and there kept and continued in possession of the 
said ship, and the cargo on board her as aforesaid. 

And your petitioners and libellants further show and allege, that 
the said John Weir, and the said other persons herein before 
named, and stated to be of Sussex county aforesaid, took, and un¬ 
laded the said cargo, consisting of the said goods, wares, and 
merchandise, on said twenty-ninth day of October, and on divers 
other days then next ensuing, at Lewistown, in Sussex county 
aforesaid, and there embezzled parcel, and stored, kept, and de¬ 
tained other parcels of the said goods, wares, and merchandise, 
under color and pretence of a claim of salvage therefor. 

And your petitioners and libellants further show and allege, that, 
willing to remunerate the same before named persons for such ser¬ 
vices as might have been done and performed by them touching the 
unlading, landing, and storing the said goods, wares, and mer¬ 
chandise, your petitioners and libellants, on the-day of No¬ 

vember, eighteen hundred and four, at Lewistown aforesaid, offered 
to pay to the same before named persons the sum of four thousand 
dollars, by way of and as a reasonable and liberal recompense and 
satisfaction for the services performed by them as aforesaid, in un¬ 
lading from on board the said ship, landing, and storing the said 
goods, wares, and merchandise at Lewistown aforesaid. 

And your petitioners and libellants further show and allege, that 
they, thereupon, then and there demanded and required from the 
same before named persons, the delivery of the possession of the 
same goods, wares, and merchandise, to your petitioners and libel¬ 
lants, to whom the same before named persons, then and there al¬ 
together refused to deliver the same goods, wares, and merchan¬ 
dise;‘and then and there rejected the said offer to pay, and refused 
to receive the said sum of money from your petitioners and libel¬ 
lants as a recompense and satisfaction for the services aforesaid; 
at the same time demanding from your petitioners and libellants 
an exorbitant sum of money, equal to one half part of the value 
of the said goods, wares, and merchandise, and upwards. 

And your petitioners and libellants further show and allege, that 
they refused to pay the same last mentioned sum of money to the 
same before named persons, deeming the said sum of money an un¬ 
reasonable claim for salvage of the same goods, wares, and mer¬ 
chandise, under the circumstances aforesaid, and contrary to the 
laws, usages, and customs in that behalf provided, used, and ap¬ 
proved. 


« 


KA A* W W ■» ■*» <■> J ilJ Sk Vi 



110 


[ 21 ] 

And your petitioners and libellants further show and allege that 
the same before named persons, having detained, and yet detaining, 
possession of the said goods, wares, and merchandise, without 
taking any legal measures to have the account of salvage aforesaid 
adjusted, and hence a right having attached in your petitioners and 
libellants, as the owners and shippers aforesaid, to call the same 
before-named persons to adjudication in this cdurt touching and 
concerning the claim of salvage aforesaid, your petitioners and li¬ 
bellants therefore pray that right and justice may be done in the 
premises, and your honor’s order and decree therein; for which 
end, your petitioners and libellants pray the process of all attach¬ 
ment, arrest, and monition to the same before named persons claim¬ 
ing as salvors aforesaid, to proceed to adjudication touching and 
concerning the claim of salvage aforesaid; or, in default thereof, 
that the said goods, wares, and merchandise be restored to your 
petitioners and libellants as the owners and shippers thereof, and 
as in like cases is used and accustomed. 

And your petitioners and libellants, &c. 

G. READ, 

Proctor for petitioners and libellants. 

At which time, James A. Bayard, Nicholas Van Dyke, and James 
M. Brown are admitted proctors for John Weir, John McMain, 
William West, John Bailey, William West, the younger, William 
Edwards, Richard Beeby, Martin Harges, Henry, otherwise called 

Harriss Beeby, - Purnell, Daniel Rodney, John Parker, 

Daniel Woolt, John West, Simon Mariner, John McCracken, Isaac 
Turner, Samuel Thompson, William Marshall, David Johnson, 
Simon Edwards, Samuel Thompson, Baily Art, Samuel Marshall, 
.Hamilton J all, Joseph Milby , Cook Clampitt, John Saunders, who 
claim one moiety of the goods, wares, and merchandise mentioned 
in the libel before mentioned as salvage for their services, peril, 
and expenses in saving the same, and tendered a bond to respond 
the costs, which is approved by the court. 

J. A. Bayard, 

Ns. Van Dyke, 

James M. Brown. 

• 

And now, to wit: this tw T enty-eighth day of September, in the 
year of our Lord one thousand eight hundred and five, all and every 
of the proceedings therefor being first searched, weighed, and ex¬ 
amined, his honor, the judge, doth pronounce and decree that the 
salvors shall receive one moiety or half part of the amount of the 
moneys arising upon the sales made by order of the court; and 
also one moiety or half part of the value of the goods remaining 
unsold, as per the estimate made by the appraisers appointed by the 
court, deducting therefrom the duties due by law to the United 
States upon the whole of the goods, sold and unsold; and that the 
residue of the moneys arising upon the goods sold, and, the whole 
of the goods unsold, be delivered to the libellants, after complying 
with the limitations above expressed. 



Ill 


[21] 

Whereupon, the attorney aforesaid, on the twenty-seventh day 
of May, A. D. 1806, on the behalf of the libellants, prayed that an 
appeal might be entered from the decree aforesaid, agreeably to 
the act ot Congress in such case made and provided, which was ac¬ 
cordingly granted by the court. 

At a special session of the district court of the United States of 
America, in and for the Delaware district, holden at Newcastle, in 
the same district, on the tenth day of February, in the year of our 
Lord one thousand eight hundred and nine: 

Delaware District, ss: 

George Read, attorney of the United States of America, in and 
for the Delaware district aforesaid, who, for the said United States, 
in this behalf, prosecutes, comes here into the district aforesaid, 
in his proper person, the tenth day of February, in the year of our 
Lord one thousand eight hundred and nine, at Newcastle, in the 
said district, at a special district court of the said United States, 
then and there holden in and for the said district, and on behalf 
of the said United States, gives the court here to understand and 
be informed that Allan McLane, esquire, collector of the revenue 
of the said United States, in and for the said district, on the fifth 
day of January, in the year of our Lord one thousand eight hun¬ 
dred and nine, at the said district, to wit: at the port of Newcastle, 
in the same district, on waters navigably from the sea by vessels, 
of ten or more tons burden, did seize, as forfeited to the said United 
States, a certain schooner called the “Fly,” her tackle, apparel and 
furniture, and the cargo then and there on board tie said schooner. 
For that the said schooner called the Fly, of the burden of one hun¬ 
dred and five tons and eighty-five ninety-fifths of a ton, owned by 
a person or persons to the said attorney unknown, departed 
from the port of Bordentown, in the district of Burlington, and 
State of New Jersey, on or about the twentieth day of December, 
in the year of our Lord one thousand eight hundred and eight, 
having then and there on board a cargo consisting of the following- 
goods, wares and merchandise, that is to say: three hundred and 
fifty-six barrels of flour, fifty-two barrels of pork, three hundred 
and seventy-eight boxes of vermicelli, two hundred and one kegs 
of lard, one hundred and forty-three boxes of Bologna sausages, 
eight kegs and two barrels of butter, two hundred and ninety-five 
hams, forty-five fowls, one tub of butter, three hundred and forty 
ropes of onions, one box of mould candles, six barrels of apples 
and thirty-two cheeses, two iron twelve pound carronades, two iron 
short six-pounders, two iron swivels, two brass swivels, two hun¬ 
dred and seventy feet of plank, of foreign and domestic growth, 
produce and manufacture, being of great value, that is to say, of 
the value of five thousand one hundred and twenty-four dollars, 
lawful money of the said United States and upwards, for another 
port or district of the said United States, adjacent to the territories, 
provinces or colonies of a foreign nation, to wit: to the port of Sj. 
Mary’s, in the district of St. Mary’s, and State of Georgia, being a 
port in the district of the United States, adjacent to the Spanish 


112 


[21] 

colony or province of*east Florida, in North America, and part of 
the dominions of the King of Spain and the Indies, there and pro¬ 
ceeded to the said port of Saint Mary’s, in the said district of St. 
Mary’s, and State of Georgia aforesaid, adjacent to the Spanish col¬ 
ony or province of east Florida aforesaid, contrary to the provisions 
of the act of Congress: “An act in addition to the act entitled an 
act laying an embargo on all ships and vessels in the ports and har¬ 
bors of the United States, and the several acts supplementary 
thereto, and for other purposes.” 13y reason whereof, the said 
schooner called the “Fly,” her tackle, apparel and furniture, with 
her cargo aforesaid, became and is forfeited to the said United 
States. 

Wherefore the said attorny for the United States, prosecuting as 
aforesaid, prays in behalf of the said United States the consideration 
of the ..court here in the premises, and that process thereof may issue 
to cite and admonish all persons whom it doth or may concern to 
appear at the next court day to show, &c., if &c., why the said 
schooner, called the “Fly,” hertackel, apparel and furniture afore¬ 
said, with her cargo aforesaid, seized as aforesaid, should not by 
a decree of this court be condemned as forfeited and sold, and the 
moneys, &c., be adjudged to the. said United States, and as to law 
shall appertain. And the said attorney of the said United States, 
who prosecutes for the said United States in this behalf, gives the 
court here further to understand and be informed, that Allan 
McLane, esq., collector aforesaid, on the same day and year afore¬ 
said, at the Delaware district, first aforesaid, to wit: at the port of 
New Castle, in the same district, on waters navigable from the sea. 
b y vessels of ten or more tons burden, did seize and forfeit to the 
said United States a certain other schooner called the Fly, her 
tackle, apparel and furniture, and other the cargo then and there 
on board the said schooner. For that the said other schooner 
called the “Fly,” of the burden of one hundred and five tons and 
eighty-five ninety-fifths of a ton, owned by a person or persons to 
the said attorney unknown, departed from the port of Bordentown. 
in the district of Burlington aforesaid, on or about the twentieth 
day of December, in the year eighteen hundred and eight, aforesaid, 
having then and there a certain other cargo on board consisting of 
the following goods, wares, and merchandise, that is to say: other • 
three hundred and fifty-six barrels of flour, other fifty-two barrels- 
of pork, other three hundred and seventy-eight boxes of vermicelli, 
other two hundred and one kegs of lard, other one hundred and 
forty-three boxes of Bologna sausages, other eight kegs and two 
barrels of butter, other two hundred and nine-five hams, other 
forty-five fowls, other one tub of butter, other three hundred and 
forty ropes of onions, other one box of mould candles, other six 
barrels of apples, other thirty-two cheese, other two iron twelve 
pound carronades, other two iron six-pounders, other two iron 
. swivels, other two brass swivels, and two hundred and seventy feet 
of plank, of foreign and domestic growth, produce, and manufacture, 
berng of great value, that is to say of the value of other five thou- 



113 


[21] 

said United States, and upwards, for another port or district of the 
said United States, adjacent to the territories, provinces, or colo¬ 
nies of a foreign nation, to wit, to the port of St. Mary’s, in the 
district of St. Mary’s, and State of Georgia, being a port and dis¬ 
trict of the United States adjacent to the Spanish colony or prov¬ 
ince of East Florida, in North America, and part of the dominions 
of the king of Spain and the Indies there, and proceeded to the 
said port of St. Mary’s, in the district of Georgia, adjacent to the 
Spanish cblony or province of East Florida aforesaid', not being 
furnished with a clearance, pursuant to the special permission of 
the President of the United States, contrary to the act of Congress 
entitled as herein before mentioned and set forth. 

Wherefore the said attorney for the said United States, prosecut¬ 
ing as aforesaid, prays, in behalf of the said United States, the con¬ 
sideration of the court here in the premises, and that process thereof 
may issue to cite and admonish all persons whom it doth or may 
concern to appear at the next court day, to show, &c.,if, &c.,why 
the said other schooner, called the “Fly,” her tackle, apparel, and 
furniture aforesaid, with her cargo aforesaid, seized as aforesaid, 
should not, by a decree of this court, be considered as forfeited 
and sold, and the moneys, &c., be adjudged to the said United 
States, and as to law shall appertain, &c. 

And the said attorney of the said United States, who prosecutes 
for the said United States in this behalf, gives the court here fur¬ 
ther to understand and be informed that Allan McLane, esquire, 
collector aforesaid, on the same day and year aforesaid, at the 
Delaware district aforesaid, to wit, at the port of Newcastle, in 
the same district, on waters navigable from’ the sea by vessels of 
ten or more tons burden, did seize, as forfeited to the said United 
States, a certain other schooner, called the Fly, her tackle, appa¬ 
rel, and furniture, and other the cargo then and there on board the 
said schooner, for that the said other schooner, called the Fly, of 
the burden of onu hundred and five tons and eighty-five ninety- 
fifths parts of a ton, owned by a person or persons to the said at¬ 
torney unknown, departed from the port of Bordentown, in the 
district of Burlington aforesaid, on or about the twentieth day of 
December, in the year eighteen hundred and eight aforesaid, hav¬ 
ing then and there a certain other cargo on board, consisting of 
the following other goods, wares, and merchandise, that is to say: 
other three hundred and fifty-six barrels of flour, other fifty-two 
barrels of pork, other three hundred and seventy-eight boxes of 
vermicelli, other two hundred and one kegs of lard, other one hun¬ 
dred and forty-three boxes of Bologna sausages, other eight kegs 
and two barrels of butter, other two hundred and ninety-five hams, 
other forty-five jowls, other one tub of butter, other three hundred 
and forty ropes of onions, other one box of mould candles, other 
six barrels of apples, and other thirty-two cheese, other two iron 
twelve-pound carronades, other two iron six-pounders, other two 
iron swivels, other two brass swivels, and other two hundred and 
seventy feet of plank, of foreign and domestic growth, produce, 
and manufacture, being of great value, that is to say, of the value 
8 


114 


[21], 

of other five thousand one hundred and twenty-four dollars, money 
aforesaid, and upwards, for another port or district of t}ie United 
States adjacent to the territories, provinces, or colonies of a foreign 
nation, to wit, to the port of St. Mary’s, in the district of St. 
Mary’s, and State of Georgia aforesaid, being a port, or district of 
the said United States adjacent to the Spanish colony or province 
of East Florida, in North America, and part of the dominions of 
the king of Spain and the Indies there, and proceeded on the voy¬ 
age to the' said port of St. Mary’s, in the district of St. Mary’s, and 
State of Georgia, adjacent to the Spanish colony or province of 
East Florida aforesaid, not being furnished with a clearance pur¬ 
suant to the special permission of the President of the United 
States, contrary to the act of Congress aforesaid, entitled as here¬ 
in before mentioned and set forth. 

Wherefore the said attorney for the said United States, prosecu¬ 
ting as aforesaid, prays in behalf of the said United States the 
consideration of the court here in the premises, and that process 
thereof may issue to cite and admonish all persons whom it doth 
or may concern, to appear at the next court day, to show, &c., if, 
&c., why the said other schooner called the u Fly,” her tackle, 
apparel, and furniture aforesaid, with her cargo aforesaid, seized 
as aforesaid, should not, by a decree of this court, be considered 
as forfeited, and sold, and the moneys, &c., be adjudged to the 
said United States, and as to law shall appertain, &c.; and the 
said attorney of the said United States, w^ho prosecutes for the said 
United States in this behalf, gives the court here further to under¬ 
stand and be informed, that Allan McLane, esquire, collector afore¬ 
said, on the same day and year aforesaid, at the district aforesaid, 
to wit, at the port of Newcastle, in the same district, on waters 
navigable from the sea by vessels of ten or more tons burden, did 
seize, as forfeited to the United States, a certain other schooner 
called the u Fly,” her tackle, apparel, and furniture, and other the 
cargo then and there on board the said other schooner. For that 
the said other schooner called the u Fly,” of the burden of one 
hundred and five tons and eighty-five ninety-fifths part of a ton, 
not being a vessel whose employment then and before had been 
confined to the navigation of bays, sounds, rivers, and lakes within 
the jurisdiction of the United States, or a packet, ferryboat or 
vessel exempted from the obligation of giving any bond ^whatever, 
owned by a person or persons to the said attorney unknown, bound 
on a voyage to the port of St. Mary’s, in the district of St. 
Mary’s, and State of Georgia, aforesaid, did, on the twentieth day 
of December, eighteen hundred and eight, receive a clearance from 
a certain William Snowden, deputy collector at the port of Bor- 
dentown, in the same district of Burlington aforesaid, and did 
depart thence, under the color of said clearance,.for the port of 
St. Mary’s, in the district of St. Mary’s, and State of Georgia 
aforesaid, having then and there on board a certain other c^rgo, 
consisting of divers other goods, wares, and merchandise, to wit, 
other three hundred and fifty-six barrels of. flour, other fifty-two 
barrels of pork, other three hundred and seventy-eight boxes of 


1.15 


[21] 

vermicelli, other two hundred and one kegs of lard, other one hun¬ 
dred and forty three boxes of Bologna sausages, other eight kegs 
and two barrels of butter, other two hundred and seventy-five 
hams, other forty-five jowls, other one tub of butter, other three 
hundred and forty ropes of onions, other one box of mould can¬ 
dles, other six barrels of apples, and other thirty-two cheese, other 
two iron twelve-pound carronades, other two iron six-pounders, 
other two iron swivels, other two brass swivels, and other two hun¬ 
dred and seventy feet of plank, of foreign and domestic growth, 
produce, and manufacture, being of great value, that is to say, of 
the value of other five thousand one hundred and twenty-five dol¬ 
lars, money aforesaid, and upwards, laden on board the same other 
schooner before that time, to wit, at divers days and times in 
and about the same month of December, the lading of which same 
cargo on board the same other schooner was not then and there 
made under the inspection of the proper revenue officer or officers 
of the said United States in that behalf,.subject to the same re¬ 
strictions and regulations as are provided by the law for the in¬ 
spection of goods, wares, and merchandise imported into the Uni¬ 
ted States upon which duties are imposed, contrary to the act of 
Congress entitled as herein before mentioned and set forth. 

Wherefore, the said attorney for the said United States, prosecu¬ 
ting as aforesaid, prays, in behalf of the said United States, the 
consideration of the court here in the premises, and that process 
thereof may issue to cite and admonish whom it doth or may con¬ 
cern, to appear at the next court day to show, &c., if, &c., why the 
said other schooner called the Fly, her tackle, apparel and furni¬ 
ture aforesaid, with her cargo aforesaid, seized as forfeited, should 
not, by a decree of this court, be condemned as forfeitd, and sold, 
and the moneys, &c., be adjudged to the said United States, 
and as to law shall appertain, &c. And the said attorney of the 
said United States, who prosecutes for the said United States in 
this behalf, gives the court here farther to understand and be 
informed that Allan McLane, esquire, collector of the Delaware dis¬ 
trict aforesaid, on the same dav and year aforesaid, at the district 
aforesaid, to wit, at the port of Newcastle, in the same district, on 
waters navigable from the sea by vessels, of ten or more tons bar- 
den, did seize, as forfeited to the said United States, a certain other 
schooner called the Fly, her tackle, apparel and furniture, and other 
the cargo then and there on board the said schooner. For that the 
same other schooner called the Fly, of the burden of one hundred 
and five tons and eighty-five ninety-fifth parts of a ton, not 
being a vessel whose employment then and there had been confined 
to the navigation of bays, sounds, rivers and lakes, within 
the j urisdiction of the United States, or a packet, ferryboat or 
vessel exempted from the obligation of giving any bond’whatever, 
owned by a person or persons to the said attorney unknown, bound 
on a voyage to the port of St. Mary’s, in the district of St. Mary’s, 
and State of Georgia aforesaid, did, on the twentieth day of De¬ 
cember, eighteen hundred and eight aforesaid, receive a clearance 
from a certain William Snowden, deputy collector at the port of 


116 


[21] 

Bordentown, in the same district of Burlington aforesaid, by the 
procuracy and contrivance of the owner and master of the same 
schooner, and owners and shipper-s of the said cargo on board, to 
the said attorney unknown, or some one of them, and did depart 
thence, under color of the said clearance, for the port of St. Mary’s, 
in the district of St. Mary’s, and State of Georgia aforesaid, 
having then and there a certain other cargo on board, consisting of 
divers goods, wares and merchandise, to wit: other three hundred 
and fifty-six barrels of flour, other fifty-two barrels of pork, other 
three hundred and seventy-eight boxes of vermicelli, other two 
hundred and one kegs of lard, other one hundred and forty-three 
boxes of Bologna sausages, other eight kegs and two barrels of 
butter, other two hundred and ninety-five hams, other forty-five 
jowls, other one tub of butter, other three hundred and forty ropes 
of onions, other one box of mould candles, other six barrels of 
apples and other thirty-two cheese, other two iron twelve-pound 
carronades, other two iron six-pounders, other two iron swivels, 
other two brass swivels and other two hundred and seventy feet 
of plank, of foreign and domestic growth, produce and manufacture, 
being of great value, that is to say, of the value of other five 
thousand one hundred and twenty-four dollars money aforesaid, 
and upwards, laden on board the same other schooner before that 
time, to wit, at divers days and times, in and about the same month 
of December, the lading of which same cargo on board the same 
other schooner was not then and there made under the inspection of 
the proper revenue officer or officers of the sai 1 United States in that 
behalf, subject to the same restrictions and regulations as are pro¬ 
vided by the law for the inspection of goods, wares ai^d merchan¬ 
dise imported into the United States, upon which duties are 
imposed, contrary to the act of Congress entitled as herein before 
mentioned and set forth. 

Wherefore the said attorney of the said United States prays, in 
behalf ef the said United States, the consideration of the court here 
in tke premises, and that process thereof may issue to cite and ad¬ 
monish whom it doth or may concern to appear at the next court 
day, to show, &c., if, &c., why the said other schooner, called the 
Fly, her tackle, apparel, and furniture aforesaid, with her cargo 
aforesaid, seized as aforesaid, should not, by a decree of this court, 
be condemned as forfeited and sold, and the moneys, &c., be ad¬ 
judged to the said United States, and as to law shall appertain, &c. 

And the said attorney of the said United States, who prosecutes 
for the said United States, gives the court her® further to under¬ 
stand and be informed that Allen McLane, esquire, collector afore¬ 
said, on the same day and year aforesaid, at the Delaware district 
aforesaid, to wit, at the port of Newcastle, in the said district, on 
waters navigable trom the sea by vessels of ten or more tons bur¬ 
den, did seize, as forfeited to the said United States, a certain other 
schooner, called the Fly, her tackle, apparel, and furniture, and 
the cargo then and there being in and on board the same schooner, 
and consisting of divers goods, wares, and merchandise, of foreign 
as well as domestic growth, produce, and manufacture, other than 
sea stores; for that the same other schooner, called the “Fly,” of 


117 


[ 21] 

the burden of one hundred and five tons and eighty-five ninety- 
fifth parts of a ton, owned by some person or persons to the said 
attorney unknown, not having been registered, and without being 
enrolled and licensed according to law, was, on a certain day or 
days between the twentieth day of December, eighteen hundred 
and eight, and the fifth day of January aforesaid, found trading be¬ 
tween district and district of the said United States, that is to say, 
between the district of Burlington, in the State of New Jersey, and 
the district of St. Mary’s, in the State of Georgia aforesaid, or be¬ 
tween two other districts of the said United States, then and there 
having on board and being in part laden with divers articles, to 
wit, goods, wares, and merchandise, of foreign growth and manu¬ 
facture, (other than sea stores,) being of great value, and in other 
part with goods the growth and manufacture of the United States, 
also of great value, belonging to the master, owner, an<l mariners 
of the said schooner, or some one or more of them, contrary to the 
act of Congress, entitled u An act for enrolling and licensing ships 
or vessels to be employed in the coasting trade and fisheries, and 
for regulating.” 

Wherefore the said attorney of the said United States, prosecuting 
as aforesaid, prays, in behalf of the said United States, the consider¬ 
ation of the court here in the premises, and that the process thereof 
may issue to cite and admonish all persons whom it may or doth 
concern to appear at the next court day, to show, &c., if, &c., why 
the said schooner, called the “Fly,” her tackle, apparel, and fur¬ 
niture aforesaid, and the lading found on board the same schooner 
as aforesaid, being divers articles, consisting of goods, wares, and 
merchandise, of foreign growth and manufacture, other than sea 
stores aforesaid, and also goods the growth and manufacture of the 
said United States as aforesaid, of great value as aforesaid, seized 
as aforesaid, should not, by a decree of this court, be condemned 
as forfeited, and sold, and the moneys, &c., be adjudged to the said 
United States, and as to law shall appertain. 

‘ G. READ, 

Attorney of the U. S. for the Delaware district. 

And now, to wit, this 7th day of April, 1809, John B. Sartou, 
by his proctor^ aforesaid, prays that the schooner “ Fly,” her 
tackle and apparel, and all and singular the goods, wares, and 
merchandise mentioned and set forth in his claim, may be delivered 
to him upon his giving the security directed by the act of Congress 
in such case made and provided. And, it being agreed by the 
counsel on both sides, upon full information that the said vessel, 
her tackle and apparel, and the said goods, wares, and merchan¬ 
dise mentioned and included in the said claim are of the value of 
three thousand dollars; and it being therefore agreed that an ap¬ 
praisement of the same be dispensed with, and there being no du¬ 
ties, as the case exists, payable upon the property contained in the 
said claim, and William Hemphill, of the borough of Wilmington, 
merchant, being offered as security for the purpose aforesaid, and 
being approved of by the court, it is ordered by the court that, 


118 


[21] 

^ A_ % 

upon the said claimant and the said William Hemphill giving bond 
in the usual form to the United States, conditioned for the pay¬ 
ment of the said sum of $3,000 within four months from the time of 
rendering the judgment of the court, in case'the said articles con¬ 
tained in the said claim shall, by the consideration and decree of 
this court, be condemned as forfeited in manner set forth and 
claimed in the libel, that the said schooner u Fly,” her tackle and 
apparel, and all and singular the goods, wares, and merchandise 
contained in his said claim, shall be forthwith restored to him. 

And now, to wit, on the same day, the seventh day of April, A. 
D. 1809, this cause coming on to be heard before the honorable the 
judge of the said court, and all and singular the exhibits and mat¬ 
ters having been seen and duly considered, his honor the judge 
doth order and decree that the said schooner u Fly,” together with 
her tackle, apparel, and furniture, and the said goods, wares, and 
merchandise, as claimed by the said John B. Sarton, as mentioned in 
the libel before named, be condemned as forfeited, and distributed, 
agreeably to the act of Congress in such case made and provided. 
And as to the remaining part of the said schooner u Fly’s” cargo 
of goods, wares, and merchandise not claimed, his honor, the 
judge, doth order and decree, that the same be condemned as for¬ 
feited, and that the same be sold by the marshal of the Delaware 
district to the highest bidder; and that the moneys arising upon 
such sales be distributed agreeably to the said act of Congress. 

A bond for $3,000, with William Hemphill security with the 
said John B. Sarton, for the agreed value of the schooner and 
cargo as claimed, being the approved security to the United States; 
filed, April 8th, 1809. 

At which time James A. Bayard, esquire, and Nicholas G. Wil¬ 
liamson, esquire, are admitted proctors for John B. Sarton, who 
claims the schooner “Fly, her tackle, apparel, and furniture,” and 
also the following goods, wares,'and merchandise, to wit, “320 bar¬ 
rels of flour, 50 barrels of pork, 378 boxes of vermicelli, 178 kegs 
of lard, 143 boxes sausages, 10 kegs butter, 2,800 weight of hams, 
45 jowls, 1 box of mould candles, 6 barrels of apples, 200 weight 
of cheese, 270 feet of plank;” suggested to be schooner “ Fly,” 
her tackle, &c., being part of the goods, wares, and merchandise 
found on board, as mentioned in the said libel before named, &c. 

M J. A. BAYARD, 

Proctor for claimant. 

Dated April 7, 1809. 

^ • . 

- " i r 

Upon the petition and statement of facts of John B. Sarton, of 
Lamberton, New Jersey, merchant, dated January 30th, 1809, to 
the Secretary of the Treasury, the said John B. Sarton being the 
claimant of the schooner u Fly,” her tackle, &c.,and a part of her 
cargo, the Secretary of the Treasury decided not to remit to the 
said petitioner the penalty and forfeiture aforesaid, nor any part 
thereof; per his decision, filed March 7th, 1809. 


119 


[21] 

At a special district court of the United States of America, in 
and for the Delaware district, holden at Dover, in the same district, 

on the -day of March, in the year of our Lord, one thousand 

eight hundred and thirteen. 

Delaware District, ss. 

George Read, attorney of the United States of America, in and 
for Delaware district, who, for said United States in this behalf 
prosecutes, comes here into the district court aforesaid, in his pro¬ 
per person, this- day of March, in the year of our Lord, one 

thousand eight hundred and thirteen, at Dover, in the same district 
at a special district court of the said United States in and for the same 
district there holden, the same day and year, and on behalf of the said 
United States gives the court here to understand, and be informed 
that Abraham Hargis, a person employed by Allan McLane, esq., 
collector of the said United^States, to do the duties of a surveyer of 
the port near Lewistown, in the said district, in with the know¬ 
ledge of Edmon Chapman, at the same time then being master of 
the said ship or vessel, and with intention to import the same ar¬ 
ticles, consisting of foreign goods, wares, and merchandise as afore¬ 
said, into the United States aforesaid, or the territories thereof, 
contrary to true intent and meaning of the said acts of Congress, 
in that behalf made and provided. And the said attorney, prose¬ 
cuting as aforesaid, further avers that the said goods, wares, and 
merchandise so as aforesaid put on board the said ship or vessel, 
with intention as aforesaid, to import the same goods, wares, and 
merchandises into the said United States, or the territories thereof, 
contrary to the prohibitions contained in the said acts of Congress 
in that behalf made and provided, were afterwards, to wit, on or 
about the twentieth day of February, in the year of our Lord one 
thousand eight hundred and thirteen, at the district aforesaid, actu¬ 
ally, and in pursuance and execution of the said unlawful intention, 
imported into the said United States, and the said ship having ar¬ 
rived and entered the waters of the Delaware, in Delaware district 
aforesaid, from the said port of Liverpool, either directly or 
circuitously, or from some other foreign port or place, to wit, 
on or about the ’ day and year last aforesaid, with the know¬ 
ledge of the aforesaid Edmon Chapman, then and there master of 
the said ship or vessel, in and on board the same ship, or vessel, 
which sailed from the same port of Liverpool, or some other for¬ 
eign port or place aforesaid, a short time after the putting and 
lading the same goods, wares, and merchandise, in and on board 
the same ship or vessel, with the same goods, wares, and merchan¬ 
dise on board her. By reason whereof, and by force of the acts of 
Congress aforesaid, the said ship or vessel, called the Lydia, her 
tackle, apparel and furniture became, and are, forfeited as afore¬ 
said. And the said attorney of the said United States gives the 
court here further to understand and be informed that the said 
Abraham Hargis, an officer of the revenue of the said United States, 
acting as surveyor and inspector as aforesaid, for the town afore¬ 
said, seized as and for the Delaware district aforesaid, and inspec- 




120 


[21 j 

tor there before that time, to wit: on or about the twenty-third day 
of February, in the same year, at the same district, to wit: in the 
bay of Delaware aforesaid, in the same district, did seize on waters 
navigable from the sea, by vessels of ten or more tons burden, as 
and being forfeited to the said United States, a certain ship or ves¬ 
sel, called the Lydia, her tackle, apparel, and furniture, owned by 
a person or persons to the said attorney unknown. 

For that, and the said attorney prosecuting as aforesaid, avers 
that the said ship or vessel called the Lydia, of the burthen of two 
hundred and thirty-four tons and upwards, whereof a certain Ed- 
mon Chapman was then and there and yet is master, being at the 
port of Liverpool, in Great Britain, or some other foreign port or 
ports, place and places, at some certain time or times after the 
second day of February, in the year of our Lord one thousand 
eight hundred and eleven, and after the fifteenth day of September, 
in the year of our Lord one thousand eight hundred and twelve, 
and before the twenty-sixth day of October, in the same year, cer¬ 
tain articles, that is to say, certain goods, w r ares and merchandise, 
being in whole or in part of foreign growth, produce or manufac¬ 
ture, or of the growth, produce or manufacture of Great Britain 
and Ireland, or of the one or other of the colonies or dependencies 
of Great Pritain, or of the growth, produce or manufacture of some 
place or country in the actual possession of Great Britain, the im¬ 
portation whereof into the United States or the territories thereof, 
as well from any port or place in Great Britain or Ireland, or in 
any of the colonies and dependencies of Great Britain, as from any 
other foreign port or place whatever, is prohibited by the act of 
Congress in that behalf made and provided, were, during the times 
the said ship or vessel was at the port of Liverpool aforesaid, or at 
some other foreign port or ports, place or places, to wit, after the 
fifteenth day of September aforesaid, then actually put and ladened 
in and on board the same ship or vessel, and being forfeited to the 
said United States, and secured the said ship or vessel called the 
Lydia, her tackle, apparel and furniture; wherefore, the said at¬ 
torney of the said United States, prosecuting as aforesaid, prays, in 
behalf of the said United States, the consideration of the court 
here in the premises, and that process thereof may issue to arrest 
and attach the same ship or vessel, her tackle, apparel and furni¬ 
ture, and to cite and admonish all persons whom it doth or may 
concern to appear at the next court, to show, &c., if, &c., why the 
same ship or vessel, her tackle, apparel and furniture, should not, 
by a decree of this court, be condemned as forfeited, and sold, and 
the moneys, &c., be adjudged to the said United States, and as to 
law shall appertain. 

G. READ, 

Attorney of the U. S. for Delaware district. 


121 [ 21 ] 

To the honorable John Fisher , esquire, judge of the district court of 

the United States in and for Delaware district: 

\ - * • . 

The libel of James Thompson, George Westly, Jacob Conwell, 
Samuel Davis, Henry Maull, Richard Westly, junior, Nathaniel 
Newnam, and Solomon Jacobs, all of Sussex county, in the said 
district, principal salvors of the ship Lydia, tackle, ap'parel, and 
furniture, and her cargo, for themselves and other salvors of an 
inferior degree of merit, 

Respectfully showetk: 

That, on the morning of the twenty-first day of February last 
past, the said James Thompson and others of the libellants descried, 
from the beach near Lewistown, in the said county, a ship just 
within the capes of Delaware, having a flag flying at her mast head, 
which they took to be a signal for a pilot; that, in consequence, 
the before named libellants immediately put off from the shore 
aforesaid in a whale boat, and rowed themselves towards the said 
ship, when, after having proceeded upwards of a mile in the bay 
of Delaware, they met the captain, Edmund Chapman, and crew of 
the said ship coming on shore from her in the ship’s long boat; 
that being informed, in answer to his inquiry then made of the said 
libellants, that they were going on board the said ship, he replied 
that she was the ship Lydia; that it would be needless as well as 
dangerous for them to go on board the said ship; that he had but 
a short time before left her, bringing his crew with him, and had 
been obliged that morning to cut his cables and heave her to under 
his mizen stay-sail; that the said ship, was, when he left her, half 
full of water, and would inevitably sink, in which case it would be 
dangerous for the boat to be alongside, as it would be carried down 
by the suction that must be occasioned by the sinking of the ship, 
and so be lost; that the said libellants before named, notwithstand¬ 
ing the great risk and danger they would incur in going alongside 
of the said ship in their said boat, as represented to them by the 
said Chapman, who, at the same time, informed the said libellants 
that he, with his crew, had abandoned the said ship Lydia, her 
tackle, apparel, and furniture, and cargo then on board, he con¬ 
sidering that it was utterly unsafe for any persons to remain, un¬ 
less at the hazard of their lives, on board the said ship, she being 
rotten, decayed, and worm-eaten; that the said libellants, however, 
proceeded towards and arrived alongside the said ship at the dis¬ 
tance of upwards of six miles from the place where they had m$t 
the said long boat; that it being the day ensuing the night of the 
great storm, although the wind had somewhat abated, there were 
heavy rolling swells in the bay, and the approach to the ship with * 
their boat was attended with considerable danger; that, on board¬ 
ing the said ship, they found the two cables cut on the windlass and 
hanging through the hawser holes, and the ship was, in other re¬ 
spects, in very bad condition; that, at the time they boarded the 
said ship, she was near, the ships’ channel in the bay, and within 
half a mile of the fork of the shoal called the sheers, to which she 


122 


[21] , 

had been driven from her anchorage in twenty fathoms, and not 
being then far from the mouth of the bay, was driving, with a 
strong wind north northwest and ebb tide, very rapidly out to sea, 
whither, if she had been at that time carried, she and the cargo on 
board her must have been totally and inevitably lost. 

That by using great labor in pumping her, and so freeing her 
from the water she had made owing to her leaking, and much ex¬ 
ertion, skill and management in navigating the said ship, and in a 
situation of extreme peril and exposure on their part, they brought 
the said ship on the bay shore abreast of Pilot town, where they 
were obliged to lay her aground, she having no anchors or suffi¬ 
cient cables. That, apprehensive lest a storm might arise while 
the said ship lay in that situation, it was deemed to be essential - 
that at least a part of the cargo on board should be promptly un¬ 
laden, so that by lightening the said ship she could be safely re¬ 
moved to some port on the waters of the Delaware. That, in or¬ 
der to expedite the unlading, it became essential to employ nume¬ 
rous hands, lighters and teams; and thus prepared, went to work, 
the day after being Monday, and continued assiduously employed 
until the ensuing Saturday, the twenty-seventh day of February 
last past, and landed and stored about four thousand bushels of 
salt from on board the said ship, being a part of her cargo, and 
about one-half the quantity of salt that had been laden on board 
her. That this operation induced necessarily an expense of about 
twelve hundred dollars, which the said libellants became responsi¬ 
ble for at Lewistown. That the said ship being much lightened 
and eased by the discharge of this portion of her cargo aforesaid, 
the libellants were enabled to. get her afloat and removed thence up 
the said bay and river to the port of Wilmington, in a. state of 
safety, with the remainder of her said cargo on board. That, in 
order to remove the said ship to the said port of Wilmington, the 
said libellants were obliged to hire anchor and cable at consider¬ 
able expense, and incur other heavy charges to the amount of about 
five hundred dollars. That the cargo on board the said ship con¬ 
sisted of about eight thousand bushels of salt, several hundred tons 
of coal, and a quantity of meats; and the said libellants represent 
that the value of the said ship, her tackle, apparel and furniture, 
and cargo on board on her first arrival in Delaware bay aforesaid, 
is estimated at ten thousand dollars and upwards, lawful money of 
the United States. Now~, inasmuch as the said libellants have, 
with so much difficulty, exposure, personal risk and expense, saved * 
th^ said ship and cargo, which otherwise, in all human probability, 
would have been totally lost, having been abandoned by the mas¬ 
ter and crew belonging to her, therefore, the said libellants pray 
the process of this court to issue to attach and seize the said ship, 
her tackle, apparel and furniture, and the cargo, as well that part 
thereof which was unladen as aforesaid, as that part thereof which 
remained on board the ship; and that the said ship, her tackle, ap¬ 
parel and furniture, and cargo aforesaid, by' your definitive sen¬ 
tence may be condemned and sold, and that an adequate and rea¬ 
sonable portion may be awarded to the said libellants and others as 
aforesaid, for their labor, peril and expense in the premises, as 

i 


% 


123 


[ 21 ] 

shall be found due to them according to law and right, and that 
such further and other decree maybe made by your honor touching 
the premises as may appertain and belong to them to demand and 
have in such case. And the said libellants further pray, on behalf 
of themselves and others, that monition issue to all persons con¬ 
cerned to show cause, if any they have, why an adequate and rea¬ 
sonable salvage should not be decreed thereout to the said libel¬ 
lants on behalf of themselves and others; and that such further 
and other steps shall be taken as the course of this court shall re¬ 
quire. 

JAMES THOMPSON, 

In behalf of himself ', the rest of the 

Libellants before named , and others. 

Geo. Read, 

Proctor for libellants. 

And now, to wit, this seventeenth day of April, eighteen hun¬ 
dred and thirteen, this cause coming on to be heard, and, it ap¬ 
pearing to his honor, the judge, upon the circumstances admitted 
by the parties, libellants and claimants respectively, touching the 
matter of salvage stated in the said libel, that, the property in 
question was saved from great peril, it is therefore ordered and 
decreed by his honor, the judge, the sum of seventeen hundred 
dollars be allowed, and is hereby adjudged and decreed as, and for, 
salvage in the matter of the said libel, and that the same be paid 
by the said claimants to the said James Thompson, for himself and 
the said other libellants in the said cause, together with the costs 
of this suit, from which decree the said parties, libellants and 
claimants repectively, stipulate and agree in the presence of his 
honor, the judge, that no appeal shall be taken, the same decree 
being made by consent of the said parties. 

JOHN FISHER. 


District of Delaware, ss. 

The United States, j 

vs. Libel filed , fyc. 

The cargo of the ship Lydia, j 

And now, to wit, this fourteenth day of March, A. D. 1813, E. 
Chapman appears gratis by his proctors, J. A. Bayard and Louis 
McLane, and claims the said cargo of the ship Lydia, mentioned 
in* the libels aforesaid as the property of the said E. Chapman, and 
tenders bond to respond the costs, &c. 

And, by the said proctors, the said E. Chapman prays that the 
said cargo may, by an order of this court, be delivered to the said 
claimant upon a reasonable valuation, upon his giving bond for the 
amount thereof, according to the provisions of the act of Con¬ 
gress and the practice ift such cases observed. 

J. A. BAYARD, 

L. McLANE. 


124 



District of Delaware, ss. 

The United States, 


vs. 


■ Libel filed , fyc. 


The ship Lydia, her tackle, apparel, and furniture. 

And now, to wit, this fourteenth day of March, A. D. 1813, E. 
Chapman appears gratis, by his proctors, J. A. Bayard and Louis 
McLane, and claims the said ship Lydia, her tackle, apparel, and 
furniture mentioned in the libel aforesaid, as the property of the 
said E. Chapman, and tenders bond to respond the costs. 

And, by his said proctors, the said E. Chapman prays that the 
said ship, and may, by an order of this court, be delivered to the 
said claimant upon a reasonable valuation, upon his giving bond for 
the amount thereof, according to the provisions of the act of Con¬ 
gress, and the practice in such cases observed. 

* J. A. BAYARD, 

L. McLANE. 


United States of America, 

Delaware District , 

I, Thomas Booth Roberts, clerk of the district court of the 
United States for the Delaware district aforesaid, do certify, that 
the foregoing pages contain true copies of libels, &c., on record in 
my office, and also extracts from the records in said cases. 

In testimony whereof, I have hereunto set my hand, and affixed 
the seal of the said court, at Wilmington, the eighth day of No¬ 
vember, in the year of our Lord one thousand eight hundred and 
forty-seven. 

T. BOOTH ROBERTS, 
Clerk Dist. court , U. S. for Del. Disi. 




125 


[21] 


In the matter of the title to the Pea Patch island , before the Hon. 

John Sergeant , arbitrator , November 27 and 29, 1847. 

Argument of James A. Bayard, of Delaware, on behalf of the United 

States: 

With submission to your honor: 

This, I believe, is the most appropriate title by which to address 
you, because, though not a judge of a court of general jurisdiction, 
you are the judge of a court of special jurisdiction, and that without 
appeal. That jurisdiction extends, too, over a case similar, in this 
respect, to one which, nearly a century ago, (when the colonies, 
which are now States, were, in population, wealth, and power, in¬ 
significant compared with their present advancement,) Lord Hard- 
wicke declared to be worthy the judicature of a Roman senate. 

The case involves a decision on the territorial limits of two sov¬ 
ereign States, and one of the parties whose rights that decision 
will finally conclude is the government of the country of which 
you are but a private citizen. The trust, therefore, is one of high 
magnitude; but it has been willingly created by both parties, with 
the most undoubting confidence in the competency and impartiality 
of the tribunal by whose judgment they have agreed to abide. It 
is proper, before proceeding in the statement of facts and discus¬ 
sion of the questions of law, upon the decision of which I suppose 
your award must rest, that I should, in justice to the government, 
state succinctly the history of the claim to the Pea Patch island. 
In May, 1813, Delaware ceded the island to the United States, upon 
condition that fortifications were erected and maintained there. In 
December, 1814, the Ignited States took possession, embanked the 
island, built wharves, erected a fort, and retained the exclusive 
possession till 1838. The possession of the island was taken peace¬ 
ably, as is shown by the officer in command, Captain Clarke; no 
vestige of any building and no inhabitants, except crows, being 
found there. The alleged previous possession of Dr. Gale, if 
proved, is immaterial; for all that is attempted to be shown is that 
he went upon the island in the spring or summer of 1813, erected 
a small fishing hut without windows or chimneys, and had a fishery 
there during that season, and perhaps, though not certainly, the 
following one. The hut, however, had disappeared, either removed 
by him or swept away by the tides, which, when very high, over¬ 
flowed the whole island; and, at all events, he had no possession 
when Captain^ Clarke commenced embanking for the government, 
and erecting temporary works in December, 1814, nor did he ever 
come there to claim possession whilst that officer remained, a period 
of near three years. The first notice we have of claim, is in 1818 
or 1819, when an action of ejectment was brought by the lessee of 
Henry Gale, against Captain I3abcock, the officer then in command 
and superintending the construction of the works. The then ad¬ 
ministration, (Mr. Monroe’s,) immediately referred the case to the 


126 


[21] 

district attorney of Delaware, though the suit was brought in New 
Jersey, and his opinion being in favor of the validity of the Del¬ 
aware title, instructions were given to the district attorney of New 
Jersey to defend the action, and counsel were specially retained on 
behalf of the United States, Richard Stockton, esq., of New Jersey, 
and Cffisar A. Rodney, of Delaware. The case was noticed for 
trial, but, after remaining in the circuit court for the New Jersey 
district till 1822, it was discontinued or abandoned in that year. 
The fort was subsequently finished, and destroyed by fire, I believe, 
in 1831. No further claim appears among the papers, or has been 
shown, until 1831. When one of the claimant’s present counsel, 
then Secretary of War, (having arrived at the conclusion that the 
Delaware title was invalid,) made a conditional contract with the 
agent of the claimant for the purchase of his title. This contract 
Congress declined ratifying. Dr. Gale being dead, the.then claim¬ 
ant brought an action of ejectment in the circuit court for the New 
Jersey district in 1833. In the meantime, the claimant, doubting 
the validity of his title even, if the island was within the limits of 
New Jersey, in November, 1831, had procured a gratuitous cession 
by that State by an act of the legislature, passed November 24, 
1831. When this second suit was brought, the course of the exist¬ 
ing administration, in reference to the claim, was characterized by 
the grossest neglect of the interest of the United States. In stating 
this, I refer to no particular individual, for I know not who should 
be considered responsible for the neglect, but it probably arose 
from being divisible. The United States had accepted her title 
from Delaware, and it would seem that when that title was attack¬ 
ed, the course taken by the government on the former occasion 
would have been the proper course. No reference, however, was 
made by the government to any officer in Delaware, nor to the 
State, for the muniments of her title. The defence was left without 
any aid afforded by the government to the district attorney of New 
Jersey as part of his official duty. It was tried before Judge Bald¬ 
win, in 1836, without a single witness on the part of the United 
States, and with no other evidence than the two printed copies of 
the duke'of York’s deeds of feoffment to Wm. Penn, to be found in 
the appendix to the first volume of the Delaware laws. A verdict 
and judgment were rendered in favor of the claimant; and, in 1838, 
under a written arrangement with the workmen residing on the 
island, the claimant went into possession. In 1839, Congress, not 
being satisfied with this decision, directed a further judicial exami¬ 
nation should be had. In May, 1839, an ejectment was brought 
into the circuit court of the United States for the Delaware district 
by the United States, and, no defence being made, judgment was, 
upon affidavit, rendered for the United States by default against 
the casual ejector. No arrangement for a further hearing, accord¬ 
ing to the directions of Congress, was effected for some length of 
time, owing to a difference of opinion between the Solicitor of the 
Treasury and the counsel of the claimant as to the proper mode of 
rehearing the case. An agreement was, however, entered into, in 
1842, between the Secretary of War and the claimant for a decision 


127 


[21] 

of the title by arbitration. The claimant failed to proceed under 
this agreement; and, in 1843, the government issued a si. fa. on 
the judgment recovered in Delaware, and, on the judgment render¬ 
ed (there being no defence) on that writ, an hab. fa. poss. was is¬ 
sued, and the possession delivered to the United States by the 
marshal of the Delaware district, who have been since and now are 
in possession of the island. I have stated this, trusting to show 
that there has yet been no fair trial of this claim on the merits. In 
the suit in Delaware, the claimant would not appear, though an 
offer was made to open the judgment; and in the suit in New Jer¬ 
sey, the title of Delaware was not in evidence, and no one* ac¬ 
quainted w T ith that title was there to defend it. The loosest depo¬ 
sitions were admitted on the part of the claimant, and not a single 
witness examined on behalf of the United States. We have come 
now to the last act of the drama; and before you, sir, both parties 
have had a full presentation of their title, and we are willing to 
abide the issue. 

Before stating the facts, it is necessary to ascertain what the ques¬ 
tion is which is submitted for your determination; and the better 
to understand what the case before you is, X shall show, first, w T hat 
it is not. It is not a question of possession, but of title. The 
United States are to remain in possession in all events. They 
have the title of Delaware, and, if the decision sustains that title, 
the right of possession follows it as an incident. If the title is 
decided to be in claimant, under the State of New Jersey, the 
United States are still, by the agreement of reference, to retain the 
possession, paying for his title a sum to be ascertained by commis¬ 
sioners. The sole question submitted for your decision is, by the 
express terms of the agreement, the title of the United States, 
claiming under the cession from the State of Delaware, and 
the title of the claimant under the State of New Jersey. Un¬ 
less, therefore, the alleged lease, as it is called, which we 
have produced under notice from the opposite counsel, affects 
the title of the United States, or gives title to the claimant, 
it is an irrelevant paper in this case. Its immateriality is 
ascertained the moment it is inspected. It is at best a mere 
agreement by certain workmen acknowledging themselves ten¬ 
ants at will of Dr. Hudson, from whom the claimant’s title 
is deduced. If those workmen were the parties to this refe¬ 
rence, and not the United States, and could show a better title 
than the claimant to the island, the lease would afford no obstacle 
to their recovery, for the tenancy at will is at an end; and it surely 
needs no argument to show that the title of the United States to 
the P ea Patch could not be impaired by any lease, either deter¬ 
mined or still existing, entered into between those to whom the 
claimant is privy in estate, and a parcel of workmen in the em¬ 
ployment of the government. Had the lease been to the Secretary 
of War, it w r ould have no greater influence; for the title of the 
United States, if good, can be defeated only by a legal disposition 
of it under legislative action. A lease accepted by the President 
himself from the claimant, and the term being still undetermined. 


128 


[21] 

would, without any action of Congress to authorise it, be equally 
nugatory, if the title is otherwise in the United States. 

The sole question, therefore, is whether the Pea Patch island is 
within the territorial limits of Delaware, or of New Jersey. 

There can be no doubt that since 1813 the title of Delaware has 
been vested in the United States, and the title of New Jersey since 
1831 vested in those from whom the claimant’s title is deduced. 

What, then, are the facts upon which the titles of these two 
States depend! 

From the documents produced in the cause, and the historical 
account of the early settlement of this country, it appears that the 
Dutch, after first making their great settlement on the North river 
about the year 1616, subsequently, about the year 1625, made a 
settlement on the Delaware, then called the South river, their prin¬ 
cipal settlement being at Newcastle, the name of which has been 
changed from Newcastle, or Fort Casiraer, to that which it now 
bears. About 1632, the Swedes also made a settlement in Dela¬ 
ware, both on the Christiana, at Wilmington, and also at what was 
called by them Cape Paradise, and, afterwards, the Whorekills, and 
is now known as Lewistown, near Cape Henlopen. Many conflicts 
took place between the settlers of the two nations, but the Dutch 
remained in the ascendant, governing the country, and holding it 
as a dependency on their great settlement on the North river, at 
New York. 

In 1664 the Dutch settlement at New York was surrendered to 
the English, and in the same year also the settlements on the South 
river. In 1672, the Dutch for a few months became again masters 
of the settlements, both on the North and South rivers, but they 
were re-taken shortly afterwards, and the title and right of Great 
Britain to the whole country, including the States of New York, 
New Jersey, Pennsylvania, and Delaware, admitted in the treaty 
between that nation and the States General, February 14, 1674; and 
the English retained the whole country from that time till the 
revolution of 1776, when thirteen colonies dissolved their alle¬ 
giance to the British crown, and became sovereign and independent 
States. 

Let us then trace the title of New Jersey under the British 
crown, and ascertain what were her territorial limits whilst she re¬ 
mained a colony. 

March 12, 1664, King Charles II, granted, by patent, to the duke 
of York, “all that part of the main land, &c., together with the said 
river called Hudson’s river, and all the lands from the west side of 
the Connecticut to the east side of Delaware bay; and also the 
islands called Martha’s Vineyard and Nantucket, together with all 
the lands, islands, soil, rivers, royalties, &c., to the said several 
islands, lands, and premises belonging and appertaining, with their 
and every of their appurtenances.” There is also a grant by the 
patent of the powers of government.—Patterson’s New Jersey 
Laws, p. 1; Learn and Spicer, p. 3 and 4. 

June 24, 1664, the duke of York conveyed that portion of the 
landscalled New Jersey, from the west of Long Island to theDela- 


129 [ 21 ] 

• • 

ware bay, to Berkley and Carteret; and under this grant the State 
of New Jersey was subsequently colonized. 

In 1672 the Dutch re-took New Jersey, and the colonists swore 
allegiance to them.—Leam and Spicer, p. 50. 

After the restoration of the country to England, June 29, 1674, 
Charles II. by letters patent, granted to the duke of York, New 
Jersey, by the same description as in the former patent, and with 
the same powers.—Leam and Spicer, p. 41. 

This second patent was questionless executed to prevent any 
doubts arising as to the effect of the re-conquest by the Dutch in 
impairing the validity of the first patent. The colony was subse¬ 
quently divided into East New Jersey and West New Jersey; East 
New Jersey became the property of Sir George Carteret, and West 
New Jersey was allotted to Edward Byllinge, William Penn, and 
others, as trustees. 

August 6, 1680, the duke of York, by deed of confirmation re¬ 
citing the previous grants, confirmed the moiety of Lord Berkley 
and others to the trustees in whom the title was then vested. This 
deed contains the following additional words: u And also the free 
use of all bays, rivers and waters leading into or lying between the 
said premises, or any of them, % in the said parts of America, for 
navigation, free trade, fishing or otherwise.” 

The duke by a similar deed confirmed East Jersey to Carteret. 

On the 23d of November, 1683, King Charles II. confirmed this 
deed to Carteret, hut there is no evidence of any such confirmation 
by King Charles of the deed of confirmation to the trustees of Au¬ 
gust 6, 1680. 

This closes the paper title of New Jersey, which is shown only 
by printed copies, no original grants or exemplified copies having 
been produced. 

On April 15, 1702, the then proprietors of east and west New 
Jersey surrendered all the powers of government to Queen Anne, 
and the surrender was accepted April 17, 1702, and the powers of 
government remained from that time till the revolution of 1776, in 
the crown. 

On the 4th of March, 1680, King Charles II. by patent granted 
the province of Pennsylvania to William Penn, described as 
bounded on the east by the Delaware river. 

August 21, 1682, the duke of York by deed released to William 
Penn all claim or title to the said province. 

On behalf of the United States, we have produced the original 
lease from the duke of York to William Penn for ten thousand 
years, dated August 21, 1682, for the land round Newcastle and 
the river, in the same language, as to description, as his subsequent 
deed of feoffment. 

On the 24th of August, 1682, the duke of York executed two 
deeds of feoffment to William Penn, which have also been pro¬ 
duced. The first deed granting the land roun^ Newcastle and the 
river and islands, the description in the premises of which deed 
will be more particularly noticed hereafter. The second deed 

9 


[31] 130 

granted the land from twelve miles south of Newcastle to the 
Whorekills. 

Both these deeds contain covenants for further assurance by the 
duke to Penn. Livery of siezin of the premises was made secund¬ 
um formam chartse, and a copy of the record thereof has been pro¬ 
duced from the records at Newcastle, duly certified. 

We have also produced an exemplified copy, more than a centu¬ 
ry old, under the great seal of New York, of a confirmatory decla¬ 
ration of the then government of New York, made November 26, 
1682, which, after reciting the deeds of feoffment from the duke to 
William P enn, and t ie livery of seizen by his attorney constituted 
in the deeds, enjoins all the magistrates and people within the 
premises granted to yield obedience to William Penn. 

We have also produced the original charter from King Charles 
II. to the duke of York, dated March 22, 1683, granting to the 
duke the same premises conveyed by him in the deeds of feoffment 
to William Penn. This charter also granted the full powers of 
government and jurisdiction. 

We have also produced two exemplified copies of this charter, 
one found among the records of Delaware, proved under oath be¬ 
fore the lord mayor of London, mofe than a century ago. The 
second, exemplified under the great seal of England, from the 
Chappie of the Rolls. The original letters patent we have traced 
to the possession of Penn, as remaining among the muniments of 
title in the charter room of the Penn family, until it was, about ten 
years ago, delivered to John R. Coutes, of Philadelphia, by one of 
the Penns, who brought it to this country. 

These are all the charters or deeds which constitute the respec¬ 
tive titles of the two States, and define their territorial limits as 
colonies. 

What, then, were the territorial boundaries of New Jersey as a 
colony under her charter? The grant is to the east side of Dela¬ 
ware bay. There is some little variance in the language of some 
©f the grants, but they all are bounded by the Delaware bay and 
river. The language of the patent from King Charles II. is, u and 
all the lands from the west side of the Connecticut to the east side 
of Delaware bay.” 

Did this grant, or did the grant of the province of Pennsylvania 
to William Penn in March, 1680, include the river? The rule of 
the law of nations is, that where a nation takes possession of a 
* country separated by a river from another nation, and it does not 
appear which had the prior possession of the river, they shall each 
extend to the middle of it* yet when the claim to the country is 
founded not on discovery, but on grant , the boundary on the river 
must depend upon the just construction of the grant, and the in¬ 
tention of the parties to be discovered from its face. This is the 
language of Judge Washington in Corfield vs. Coryell, 4 Wa^h., 
'C.C. R.,384; and in that case he decided that the chartered limits 
of New Jersey did not include any part of the Delaware bay or 
river below low water mark. But this question has been settled 
by the Supreme Court of the United States, in Handley’s lessee vs. 


131 


[21] 

Anthony, 5 Wheat., 374. “ When (says C. J. Marshall, delivering 

the opinion of the court,) a great river is the boundary between 
two nations or States, if the original property is in neither, and 
there be no convention respecting it, each holds to the middle of 
the stream. Eut when, as in this case, one State is the original 
proprietor, and grants the territory on one side only, it retains the 
river within its own domain, and the newly created State extends 
to the river only. The river, however, is its boundary.” 

In this case, the crown of England was the proprietor of the 
whole country, and the grant to the duke of York was, by its 
terms, bounded by the river, and the river of course remained in 
the crown, the original proprietor. 

But the grant in this case was a grant by the king to a subject, and 
we must look to the common law for the rules which govern the con¬ 
struction of the grant. The rule of common law is, whether the 
grant be by a subject to a subject, or by *the crown to a subject, 
that a grant bounded by a river not navigable, extends ad filum 
aquse; but on navigable streams, where the tide ebbs and flows, the 
grant extends only to high water mark. King vs. Smith, 2 Doug., 
441; ex parte Jennings per Savage, C. J. C., Cow., 528; and the 
cases cited; 6. Cow., 536, note (a.) 

This necessarily flows from the principle that, of common right, 
the shore between the high and low water mark of the sea, and the 
arms thereof, belongs to the crown, and though it may belong to a 
subject, yet it will not pass by implication, and without express 
and apt words of grant.—Hale de jure maris, 12, 13. 

Being in the king prima facie, and of common right, it cannot 
pass by his grant without express words of grant, as n-othing passes 
by a royal grant by general words, or by implication. The Banne 
Fishery, Davies Pc. 156, 157; not unless the intention be manifest 
that it should pass. Duke of Somerset vs. Fogwell, 5 B and C, 
875, 886. United States vs. Arredando, et al., 6 Peters, 738-’39. 

The Delaware river was not therefore included within the grant 
to the duke of York by King Charles, and independently of the 
rule of construction referred to, the intention is manifestly not to 
include the river, as the Hudson river in the patent is granted by 
express words of description, u together with the said river called 
Hudson’s river.” 

In 1721, upon the application of the colonies of Pennsylvania 
and New Jersey, the opinion of Lord Hardwicke and Lord Ray¬ 
mond, then attorney and solicitor generals, was given as to the 
title to the Delaware river, and that opinion was clear and decisive 
that the river was not included either within the boundaries of the 
grant of New Jersey or of the province of Pennsylvania, but re¬ 
mained in the crown.—Chaim. Opinions, 59. 

The opinion was confined to the two charters of New Jersey and 
Pennsylvania, and though the reasons are not given, it could have 
been based on no other principles than those which have been 
stated. The grants under which the title of Delaware is sustained 
were not before those officers, and the opinion has no relation to 
them. Delaware was at that time a distinct colony from Pennsyl- 


132 


[ 21 ] 

vania, though belonging to the same proprietary. The chartered 
limits of New Jersey, therefore, whilst a colony, did not include 
the Delaware river or the islands therein. Nor could the colony 
acquire any right by prescription to the river, (if there were any 
facts to sustain such a prescription against the crown,) as the time 
up to 1683 (when the title of Pennsylvania accrued under the 
grants which embraced the colony of Delaware) was too short to 
give title by prescription. 

The right then to the river Delaware in 1682, 1683, was not in 
the colony of New Jersey either by grant or prescription, but in 
the crown of England. 

Was then the title and jurisdiction over the river in the colony 
of Delaware, by virtue of the deed of feoffment of the duke of York 
to William Penn, of August, 1682, and the subsequent grant by 
King Charles to the duke of York, on the 22d of March, 1683? 

The first question, and p&rhaps the only question is, as to the 
validity of the duke’s grant and the elfect of the subsequent grant 
by the crown to him. 

The second question, whether the grants if valid cover the river, 
its soil, and the islands within the twelve miles circle, seems too 
plain for argument; and were it not for the extraordinary opinion 
delivered by Judge Baldwin on the former trial of the title to this 
island, would require only that the description of the premises con¬ 
veyed should be read. 

First. As to the validity of the grant by the duke of York to 
William Penn. 

The duke of York, after the surrender by the Dutch both of the 
settlements on the North river and on the South river to his officers 
in 1664, claimed and governed the now State of Delaware, as a de¬ 
pendency upon the province of New York, until he made the grant 
to Penn in 1682. Private grants of land were made, both by 
Nicholls and Andross, the duke’s governors of New York, which 
have always been recognized as valid in Delaware. Courts were 
established, and the powers of government exercised over the 
country as fully as if he had received a grant from the crown. 
With the full knowledge of these facts, the crown in 1672, made 
its second grant of New York to the duke of York. Were it ne¬ 
cessary to rely upon a prescriptive title in the duke, it might well 
be contended that the facts of the case, and the subsequent peace¬ 
able possession of Penn under the deed of feoffment, would, in the 
course of years, undisturbed as he was by the crown, give a good 
title to the premises contained within the duke’s grant. It is un¬ 
necessary, however, to press this view of the case. 

The duke of York being in actual possession, on the 24th of Au¬ 
gust, 1682, by deed of feoffment, granted and conveyed to William 
Penn, his heirs and assigns, the following premises: u All that, the 
town of Newcastle, otherwise called Delaware, and all that tract 
of land lying within the compass or circle of twelve miles about 
the same, situate, lying, and being upon the river Delaware in Ame¬ 
rica, and all the islands in the said river Delaware, and the said 
river and soil thereof, lying north of the southernmost part of the 


133 [ 21 ] 

/ 

said circle of twelve miles about the said town, together with all 
rents, services, royalties,” &c. 

This deed contains also a covenant for further assurance by the 
duke, and constitutes two joint and several attornies to make livery 
of seisin of the premises. 

Livery of seisin was accordingly, in October, 1682, made by 
John Moll, one of the attornies of the duke, to William Penn, per¬ 
sonally, (( secundum forAam chartae,” by handing him the key of 
the fort at Newcastle, into which Penn entered, also by the deliv¬ 
ery of turf, twig, and fowl, and the soil of the river, and a por¬ 
ringer of river water. 

I5y a second deed of feoffment dated on the same day as the first, 
the duke also conveyed to William Penn: u All that tract of land 
upon Delaware river and bay, beginning twelve miles south from 
the town of Newcastle, otherwise called Delaware, and extending 
south to the W horekills, otherwise called Cape Henlopen, together 
with free and undisturbed use and passage into and out of all har¬ 
bors, bays, waters, rivers, isles, and inlets, belonging to, or lead¬ 
ing to the same.” 

This deed also contains a warrant for further assurance by the 
duke. 

It contains also what is not found in the first deed, a covenant 
by Penn to account for and pay over to the Duke, his heirs, and 
assigns, one moiety of the rents, issues, and profits, of the premi¬ 
ses conveyed. 

Livery of seizin was also regularly made under this deed on the 
premises, according to the form of the grant. 

On the 22d of March, 1683, King Charles II., by letters patent 
under the great seal, granted to the duke of York both the fore¬ 
going tracts, by a description in and odidem verbis , with this ex¬ 
ception, that in the king’s grant to the duke, in the description of 
the first tract these words are added, u lying between New Jersey 
and Maryland,” rendering the description slightly more definite. 
In the grant by the crown both tracts are included in the same 
patent, and the full powers of government are also granted. 

It is submitted, first; that the effect of these deeds by the duke 
of York to William Penn, and the subsequent charter by the crown 
to the duke was to pass the legal title to William Penn in the prem¬ 
ises conveyed by the estoppel. 

Or, secondly; that the duke, after the grant by the crown, held 
the premises as a trustee for William Penn, and under the covenant 
for further assurance, could, as a subject, be compelled to convey 
the legal estate. That, upon his ascent to the throne, he still held 
as a royal trustee, and the equitable estate was in Penn, in fee; 
and being in possession as cestui que trust, the estate, whether 
legal or equitable, made Penn the absolute owner of the premises 
intended by the king’s grant to pass. 

The legal title passed from the duke of York by estoppel to 
William Penn. 

It may be admitted that in general the crown is not bound by 
estoppels in pleading, or arising out of its own acts. The distinc- 


134 


[ 21 ] 

tion is, that no estoppel can arise from any grant or act of the king 
so as to bind the crown; but if the king acquires by descent, or 
otherwise, lands which are bound by estoppel as against the person 
under whom he claims, the estoppel will continue against the 
crown. 

In the case of Penn vs. Lord Baltimore, 1 Vez. 453, Lord Hard- 
wicke did not decide this question; but Jie says, “the question of 
estoppel is a nice consideration, and the*uke was in a condition to 
be bound.” 

The principle is, that an estoppel, where it works on the interest 
in the land, runs with the land, and is a title. Trevivan vs. Law¬ 
rence, 1 Salk. 276; S. C. 6 Mod. 258; Palmer vs. Ekins, 2d Ld. 
Raym., 1551. 

“ Privies in estate as the feoffee, lessee, &c., shall be bound by, 
and take advantage of, estoppels. If A lease by indenture to B 
lands in which he has nothing, and afterwards A purchases in fee 
the same lands, and sells them to D and his heirs, D shall be estop¬ 
ped; and where the estoppel works on the interest in the land , it 
runs with the land into whosesoever hands the land comes.” 

This is the second resolution in Palmer vs. Ekins; and its prin¬ 
ciple includes the crown as well as a subject, where the land comes 
to the crown bound by the estoppel. The effect, too, of an estop¬ 
pel is different, where it is of a mere technical character, and where, 
as in this case, it is but an enforcement of a plain principle of 
right and justice. 

That the estoppel bound the duke of York and his assignees 
whilst a subject, immediately after the grant by the crown, is be¬ 
yond controversy; and on what principle or authority, as it run 
with the land , did it cease to affect the title when the duke ascend¬ 
ed the throne? He held the land by grant, and not by prerogative; 
and it is only the prerogative right which is not affected or bound 
by estoppel. Earl of Hereford vs. Syley, 1 Ld. Raym., 211. 

It is laid down generally in Req. vs. Delme, 10 Mod., 200, “ that 
the queen may amend her pleadings at any time, nor will any es¬ 
toppel bind the crown.” This, however, is not the languge of the 
court, but of the reporter; and the case itself was on a question of 
pleading and “ adjournatur.” The authorities referred to in sup¬ 
port of the position, “nor will any estoppel bind the crown,” are, 
1 Lid., 412, and “ that is a short note deciding that the king may 
bring an action where he pleases; and Hobart, 339; and there the 
ruling is warranty, collateral binds not the king without true and 
actual assets, nor by estoppel of his own recitals excerta scientia.” 
This is in accordance with the distinction contended for, and it is 
believed that no case can be found contrary to that distinction. 

The principle of the law of estoppel is the same now as when 
the grant was made in 1683, to the duke of York by King Charles. 

Suppose that A grants land in Pennsylvania to B, to which he 
has no title; and afterwards the State grants the same land to A, 
the estoppel would attach upon the land and bind it in the hands 
of A and his alienees. It operates to convey a legal title to B, the 
instant A receives the grant. If A died, leaving a son, and after- 


135 


[ 21 ] 

wards the son died without heirs, and the land escheated to the 
State, would it be contended that the title of B, and those claim¬ 
ing under him, would not be good against the State; and yet the 
State represents and combines the rights both of the crown and 
parliament. 

The duke of York having aliened in fee to Penn, by deed of feoff¬ 
ment, land in which he had nothing at the time of the grant, and 
receiving in seven months afterwards the grant of the same prem¬ 
ises from the king, the title passed by estoppel from him to Penn* 
and, according to the cases cited, vested the legal title as firmly in 
Penn as a second conveyance from the duke, and %ie title, as the 
estoppel run with the land , was not affected by the duke’s subse¬ 
quent ascent to the throne. 

But if I am in error as to the title of estoppel, yet the duke of 
York clearly held, as a trustee for Penn, and whilst he remained a 
subject, could have been compelled to convey; why not a royal 
trustee, asks Lord Hardwicke; and to this no answer can be given? 
It is true that, in the case of a royal trustee, chancery would have 
no jurisdiction to decree a conveyance; but this alters not the right, 
but merely affects the remedy. The remedy would be by petition 
of right. 

' Though doubts were once entertained whether the king could be 
a trustee, and there are some old cases to that effect, yet they are 
not sustainable on equitable principles; and the strength of author¬ 
ity is the other way. 

Though Lord Hardwicke did not decide this in Penn vs. Balti¬ 
more, as it was not within his jurisdiction; yet the principles enun¬ 
ciated show what his decree would have been in a proper case. In 
the great case of Burgess vs. Wheate & Wm. Beach, 143, 144, and 
168; Lord Mansfield and the master of the rolls held that the king 
could be a trustee; and, in our day, it is believed the question 
would not be arguable. The arms of the prerogative have been 
somewhat shortened. Suppose land to be conveyed to the king’s 
brother in trust for the use of A, could it be contended that, if he 
subsequently ascended the throne, he would hold the land dis¬ 
charged from the trust? If A mortgaged land to B, who subse¬ 
quently ascends the throne, would that bar the equity of redemp¬ 
tion? And yet there is no distinction between the two last cases 
and the principal case, except that they are direct trusts, and the 
trust for Penn, in the duke of York, arose out of the principles of 
equity. That the duke of York, whilst a subject, was a trustee for 
Penn, and could, under the covenant for further assurance, have 
been compelled to convey, is beyond question. Lord Hardwicke 
decides that , and it is difficult to conceive on what principle of 
equity the trust would be determined by the duke’s ascent to the 
throne. 

But if there were any doubts existing as to the validity of Penn’s 
title to the three lower counties, that title was confirmed long prior 
to the revolution of 1776 by the crown; and, from the questions 
which arose in reference to the title, it is very evident it was con¬ 
sidered unassailable by the crown. 


136 


[ 21 ] 

Penn having gone into possession of the three lower counties, 
under the deeds from the duke of York, remained in possession 
from 1682 until the revolution of 1776, and the crown never inter¬ 
fered with him except on one occasion, which shall be noticed. 

He granted lands, and exercised the powers of government with¬ 
in those counties, during that period; yet Penn was an object of 
jealousy and distrust during the reign of William and Mary, and 
if the opinion had not been clear as to his title, would it not have 
been tested! 

As the colonies grew more powerful, it became the policy of the 
crown to sub^itute royal for proprietory governments, and though 
they negociated with Penn for the purchase of his right of govern¬ 
ment, it was never seriously questioned. 

The opinion of Northey and Thompson, attorney and solicitor 
general, given on Penn’s title to the three lower counties, has been 
cited and read against us; but a full investigation of it, shows that 
it is decidedly favorable.—Chalmers’s Opinion, 42, et seq. 

An application was made by the earl of Sutherland, an influential 
noble, to whom the king was largely indebted, for a grant of the 
three lower counties, alleging that William Penn had no valid 
title to them. 

This was in 1717. Before deciding upon that application, it was 
referred to the attorney and solicitor general, and the parties ap¬ 
peared before them by counsel, and examined witnesses. At that 
time William Penn was a lunatic, as stated in the opinion, and 
those who represented his interests were unable to produce the 
patent of King Charles II. to the duke of York, of March, 1683. 
They alleged its existence; but the reasoning of the opinion evi¬ 
dently shows that the attorney and solicitor general considered 
that, though the patent had partially progressed, it had never 
passed the great seal. Had William Penn been sane, this could 
easily* have been explained, for the patent which misled those of¬ 
ficers was one which was applied for by the duke of York, and 
though ordered by the king, the issuing of it was delayed by the 
opposition of Lord Baltimore, until the duke of York ascended the 
throne. The object of the second patent was, as appears from the 
note of its contents in the paper-book or breviate, in the case of 
Penn vs. Baltimore, to define and enlarge the description of the 
lands extending from a point twelve miles south of Newcastle to 
the Whorekill s; and this was more necessary from the fact that the 
grant of that part of the three lower countries, both in the king’s 
patent and in the duke’s deed to William Penn, does not define the 
western boundary at all. 

The description of the premises around Newcastle, contained in 
the duke’s first deed to William Penn, was the same in both patents, 
in that which is now produced, and that which was defeated by 
Lord Baltimore’s opposition. The opinion, however, of the attor¬ 
ney and solicitor generals, notwithstanding the non-production of 
the patent of 1683, and their belief in its non-existence, was not 
against the title of Penn, and impliedly by its reasoning admits, 
that had the patent been before them, they should have considered 


137 


[ 21 ] 


the title of Penn as valid. They recommend, without expressing 
any opinion for or against the title of Penn, that the crown should 
establish its title in chancery, before making any grant of the three 
lower counties to the earl of Sutherland. No such proceeding 
ever took place, and the fair inference is that the crown was ad¬ 
vised that the title of Penn was not to be questioned; at all events, 
Penn remained in peaceable possession, undisturbed by the crown. 
This, too, was the opinion of crown officers, and it may be assumed 
as certain that their opinion would not be against the crown if a 
question could be made. 

But there is another opinion of Northey, attorney general, in the 
same book, Chalmers’s Opinions, 32, 33, expressly in favor of Penn’s 
title to the three lower counties. The opinion was given in con¬ 
sequence of a contemplated agreement between the crown and 
William Penn, as to the purchase from Penn of his right of govern¬ 
ment of the province of Pennsylvania and the three lower coun¬ 
ties. Its date is 1711, and it is stated that William Penn waited 
upon him with his title papers, both of the province and three 
lower counties, and the opinion is decisively expressed as to the 
validity of Penn’s title to both. These are the opinions of able 
lawyers of that day, and they are in favor of the title of William 
Penn. 

I pass now to an act of the crown, w r hich is irreconcilable with 
any supposed defect in Penn’s title to the three lower counties. 

In 1682, after the duke of York’s deeds to William Penn, the 
three lower counties were attached to Pennsylvania, and remained 
united to her till 1701. In October, 1692, Penn, being out of favor, 
from his former intimacy with, and supposed attachment to, the 
duke of York, was removed from the government of Pennsylvania, 
and of the territories around Newcastle, by William and Mary, and 
a commission issued to Benjamin Fletcher, then the royal governor 
of New York, as governor of both the province and territories. 
Fletcher remained governor until August, 1794, when Penn was 
restored, by letters patent, to the government of both the province 
and territories. 

If the title of Penn to Delaware had not been good, can it be 
supposed that the crown, having sufficient cause to remove him 
from the government of both the province and territories, would 
have restored him to the government of the territories ? 


He held, governed, and claimed them,* as granted to him by the 
duke of York—he, out of favor, and an object of distrust at court; 
and can the restoration to the possession and government of the 
territories be viewed in any other light than as a confirmation and 
recognition by the crown, by letters patent, of the validity of the 
grant under which he claimed. 

But the evidence of the validity of Penn’s title to Delaware does 
not stop here. The proceedings and decision in the case of Penn 
vs. Baltimore, decided by Lord Hardwicke in 1752, are inconsist¬ 
ent with any defect in Penn’s title to the three lower counties. Dis¬ 
putes as to territorial rights had existed between Penn and Lord Bal¬ 
timore from the time of the duke’s grant to Penn in 1682. Lord Bal- 


138 


[ 21 ] 

timore claimed to the Delaware river, and nearly the whole, if not 
the whole, of Delaware. The case was decided by the king in 
council, in 1685, adverse to the claim of Lord Baltimore. A line 
was established by that decree, and the claim of Lord Baltimore 
east of that line disallowed, principally on the ground that the grant 
to him was of unsettled and uncultivated land, not previously colo¬ 
nized by any Christian people; and that, as the Dutch and Swedes 
had both settled and formed colonies on the Delaware, from Cape 
Henlopen up beyond the northern boundary of the three lower 
counties, he could not, under a grant by the crown of land$ 61 hac- 
tenus inculta ,” claim any portion of those settlements, though oth¬ 
erwise within the geographical boundaries of his patent. It may 
be objected that this order in council decreed the lands west of this 
line to be in the king; but the answer to that is, that the proceed¬ 
ing before the council was carried on by Penn in the king’s name, 
and that the question of title, as between King James II. and 
Penn, either by estoppel, or by trust, was not before the council, 
and not intended to be affected by the decree. The whole pro¬ 
ceedings in the case show this conclusively, and that Penn was the 
actor on one side, and Lord Baltimore on the other. Penn re¬ 
mained in possession from that time till his death, in 1718; but the 
line, according to this decree, never having actually been surveyed, 
and Lord Baltimore not satisfied with the decision, there were con¬ 
stant disputes and conflicts as to its location, among the colonists, 
and the southern line of Pennsylvania remained also unsettled. 
In 1732 the representatives of William Penn and Lord Baltimore 
executed articles of agreement with the view to the establishment 
of the line between the three lower counties and Maryland, and 
between the province of Pennsylvania and Maryland. Commis¬ 
sioners were appointed on both sides, and they met repeatedly; 
but it was only to dispute, and finally, in 1737, a bill in chancery 
was filed before the lord chancellor by the Penns against Lord 
Baltimore, for the specific performance of the agreement, and after 
great delay, and every possible objection interposed, the decree of 
Lord Hardwicke was pronounced in favor of the Penns, in 1750. 
It is true that the decree in this case was made with a salvo jure of 
the crown, but though Lord Hardwicke did not, in that case, decide 
as to any claim or interest in the crown, yet it is certain that the 
attorney general, though the case stood over to make him a party, 
made no claim, and interposed no objection on behalf of the 
crown. 

The Penns had then been proprietaries of Delaware, and gov¬ 
erned it for nearly seventy years, and it would be absurd to sup¬ 
pose that, if the crown had any valid claim, it would have slept 
longer upon its rights, when formally made a party to the suit; and, 
though the decree of Lord Hardwicke did not bind the crown, his 
doctrines certainly did. Liberty also was given by the decree to 
either party, to apply to the court for further directions, if 
by any act or right of the crown execution of the decree was 
obstructed. No such obstruction occurred, and no application 
as mi le by either party under tlve liberty reserved. 
wAfter grea t delay, a second agreement in 1760, and further dis- 


139 


[ 21 ] 

« 

putes, and a second bill in chancery, and decree, the line of di¬ 
vision was finally adjusted, and the boundaries fixed and estab¬ 
lished under the decree by actual survey, and marked out with 
stones, pillars, and other land-marks. In 1767, whilst the survey 
was in progress for establishing the division line between the col¬ 
onies, a joint petition was presented to the king, by Lord Balti¬ 
more, as proprietor of Maryland, and the Penns as proprietaries of 
the counties of Newcastle, Kent, and Sussex, and the province of 
Pennsylvania. This petition, after reciting, (among other things,) 
that the commissioners to mark and bound the division line were 
proceeding in their work, and that the said proprietors were desi¬ 
rous to quiet the minds of all his Majesty’s subjects inhabiting the 
disputed parts of said provinces and counties , and that a final end 
' had been put to all their contests and litigations, by an agreement 
made in 1760, prays that his Majesty would be most graciously 
pleased to give his royal allowance, ratification, and confirmation 
, of the several and respective articles, and enrolled decrees, and 
every article, clause, and thing in them contained. Upon this pe¬ 
tition an order in council was made on the 11th of January, 1769, 
signifying the royal approbation of the agreements and proceed¬ 
ings mentioned in the petition of the said proprietaries, whereof 
as well the proprietaries as all others whom it might concern, were 
ordered to take notice, and govern themselves accordingly. 

It is submitted that this is, was a full and complete recognition 
and confirmation of the title of the Penns, under the deeds of 
feoffment, from the duke of York, by the crown, and that if any 
question had previously existed, as to any claim in the crown, it 
was abandoned. The deeds of feoffment are recited in the articles 
of agreement, as the origin of the Penn title, and that agreement, 
and the decree for its specific performance, were both ratified by 
the king in council. 

Could a patent from the crown have greater effect in confirming 
the title of the Penns to the colony of Delaware? They had then 
been in possession as proprietaries nearly ninety years, granting 
lands, and reserving rents as such, and exercising, without hin¬ 
drance from the crown, the powers of government conferred by 
the charter of 1683; and the three lower counties had existed as a 
separate colony, with its own legislature, under the proprietary 
government of the Penns, since 1701. It would be a vain attempt 
to sustain any title against the crown, if, in 1769, the Penns had 
not a valid title to the colony of Delaware, according to its bound¬ 
aries, designated in the deeds from the duke of York to William 
Penn. 

If, then, I have established the validity of the grant, it is valid 
for all intended to pass by it. The next question is, did not the 
description, in the first deed of feoffment, and in the king’s patent, 
include the Delaware river within the twelve miles circle? It is 
conceded that the bay is not included in the second deed of feoff¬ 
ment, and that the tract, extending from a point twelve miles south 
of Newcastle to Cape Henlopen, is bounded by the bay, and does 
not extend beyond low water mark. Delaware has never claimed 


140 


[ 21 ] 

A 

the jurisdiction over, or title to, the river or bay below the south¬ 
ern boundary of the circle, except ad filum aquae. But the eastern 
boundary of the grant, in the first deed of the duke of York, it is 
contended is the low water mark on the Jersey shore. 

The grant of New Jersey, as I have already shewn, was limited 
by the low water mark of the river and bay, and the right to the 
river in 1682 remained in the crown. 

Does not a just interpretation of the description in the first deed, 
from the duke of York to Penn, and in the patent to the duke, in¬ 
clude the river and its soil within the twelve mile circle? The 

i 

first part of the description is, “ all that the town of Newcastle, 
otherwise called Delaware, and all that tract of land lying within 
the compass or circle of twelve miles about the ‘same, situate, 
lying, and being upon the river Delaware, in America.' 5 If the 
description of the thing granted had stopped here, it clearly would 
not have included the river, for it is of a tract situate and lying 
upon the river Delaware, and, as nothing passes in a royal grant 
by implication, the river would not have passed. It also conveys 
land, not on both sides, but only on one side of the river—the 
western—within the compass or circle of twelve miles about the 
town, and this, is rendered more evident by the added words in the 
patent, “lying between New Jersey and Maryland. 55 But there is 
no rule of construction which can exclude the following words of 
description from their just operation: “ And all islands in the said 
river Delaware, and the said river and soil thereof lying north of 
the southernmost part of the said circle of twelve miles about the 
town. 55 You cannot strike these words from the deed, and they 
can have but one of two meanings. The previous part of the de¬ 
scription covered all the land within a circle of twelve miles about 
the town, lying on the river, and the river became the boundary; 
and the subsequent words must either intend to convey all the 
river north of the southernmost part of the circle to its source, or 
to the head of navigation, or else all that part of the river north 
of the southernmost part of the circle within the limits of the 
grant; that is, between the two points where the circle cuts the 
river north and south of the town of Newcastle. That the last is 
the true construction, I cannot doubt; for, though in .a royal grant 
nothing passes by implication, the description of the thing granted 
may be restrained by reasonable implication, and it would be a rea¬ 
sonable implication to say that the river was intended’to be granted 
so far as it bounded the land granted in the previous part of the 
description, and no further. If the river, so far as it bounded the 
land within the circle, was not intended to pass by the latter clause 
of description, it is difficult, if not impossible, to conceive what 
other language could have been used for that purpose. One can 
almost fancy that the writer of the deed had Lord Hale’s treatise 
before him; for he has used just such language as Lord Hale says 
is’apt and proper for a grant of a river and the subaqueous soil. 
Indeed the description is so clear that it is useless to comment 
further on the construction, and more especially as I shall have 


141 


[ 21 ] 

# 

occasion again to revert to it in reviewing the opinion delivered 
by Judge Baldwin in the case of the lessee of Gale vs. Belin. 

If, then, the title to the river Delaware remained in the crown 
of England after the grant which includes New Jersey had been 
made, and the crown, by its subsequent grant to the duke of York 
whose title vested in Penn, granted not only the land within the 
twelve miles circle, but the river, its soil, and the islands therein, 
and the claim of both New Jersey and Delaware is founded on 
grant , it must depend for its determination on the just construc¬ 
tion of the terms of the grant; and the river within the twelve 
miles circle is, therefore, within the boundaries of Delaware. 

But a question may be raised, if question it can be called, as to 
the right of the king to grant a river and the subaqueous soil to a 
subject, so as to pass the islands subsequently arising in the river. 

It is presumed there can be no doubt as to the determination of 
this. 

Maritama incrementa belong, of common right to the king, but 
may become the propertv of a subject by grant or prescription. 
Hale de jure 14, 17, 18. 

They are of three kinds: 

1st. Per projectionem vel alluvionem. 

2d. Per relictionem vel desertionem. 

3d. Per Insulae productionem. 

Hale de jure, 14. 

The last alone are in question here 3 and the rule as to them is 
clearly stated by Lord Hale, in his treaties. u As touching islands, 
arising in the sea, or in the arms or creeks, or havens thereof, the 
same rule holds which is before observed, touching acquests by the 
reliction or recess of the sea, or such arms or creeks hereof. Of 
common right, and prima facie, it is'true, they belong to the crown, 
but where the interest of such 4 districtus maris, 5 or arm of the sea, 
or creek or haven, doth in point of propriety belong to a subject, 
either by charter or prescription, the islands that happen within the 
precincts of such private propriety of a subject, will belong to the 
subject according to the limits and extents of such propriety. 55 — 
Hale de jure, 36, 37. 

This passage is quoted and recognized by Holroyd J. in Blundall 
vs. Caterall, 5 B. and A. 268, as showing the difference between 
the common and civil law, in respect to the propriety of islands 
newly rising in the sea, or one of its arms. There can, therefore, 
be no doubt as to the right of the king to grant the subaqueous soil 
of the sea, or one of its arms, and that in such case the propriety 
of an island, arising within the boundaries of the grant, will be in 
the subject to whom the grant was made. 

It is true that in such grants the jus privatum of the grantee is 
always subject to the jus publicum. The right of navigation and 
passage and repassage, unobstructed by nuisances and unimpeded 
by exactions, has always been admitted as a jus publicum, belong¬ 
ing to the people, and from which no grant by the crown could 
derogate. It is called a servitude belonging to the people.—Hale 
de jure, 6. 


142 


[ 21 ] 

Whether the common right of fishing in navigable streams is in 
the people at large, as part of the jus publicum, so as to prevent a 
grant by the crown excluding it, since magna charta, is a question 
yet open for discussion, but it has no bearing on this case. That 
the crown might grant a navigable river and the soil thereof, sub¬ 
ject to the jus publicum, has never been doubted, and the propriety 
of islands, arising in the river, cannot be a part of the jus publi¬ 
cum, because that refers solely to common rights, and islands must, 
from their nature, be the subject of exclusive appropriation. 

This is in accordance with the language of Hasner J., speaking 
in reference to the rule of the common law: “it promotes the grand 
ends of civil society, by pursuing that wise and orderly maxim of 
assigning to every thing capable of ownership a legal and deter¬ 
minate owner.’’—Adams vs. Pease, 2 Conn. R., 483. 

The common right of navigation is now in all the people of the 
United States, and no State can control it; but the common right 
of fishery is in the people of each State, and to the extent of her 
jurisdiction and within her territorial limits, the State may control 
or grant it. 

In this case, however, it is unnecessary to determine whether the 
right of fishing in the river Delaware, within the twelve mile circle, 
is exclusively within the jurisdiction of Delaware. 

Admitting, however, a common right of fishery in the people of 
the colony of New Jersey in 1682-1683, and subsequently, this 
would not grant the river or its soil, whether the right arose from 
grant or prescription. 

A prescription, extending to a liberty, profit apprende, or juris¬ 
diction, such as liberty of free fishery, &c., is not an acquest of the 
soil or water, but leaves them where it found them.—Hale de jure, 
32. 

The deed of confirmation of the duke of York to the trustees of 
the proprietors of New Jersey, was not intended to extend the ter¬ 
ritorial limits of the colony.—Corfield vs. Coryell, supra. 

It merely operated to secure the common rights of navigation 
and fishery. 

Lord Hale’s treatise de jure maris has been most usually cited, 
and relied on in support of these principles, and that because of the 
authority it has justly attained, and the clearness and fulness of its 
doctrines. He needs no eulogy from me. His mind was of that 
extraordinary cast, which combines an unbiassed judgment with the 
most accurate discrimination, free, too, from the vice of over refine¬ 
ment, (the besetting sin of discriminating minds,) and enlightened 
by the most profound study and research. Add to this, a character 
of stainless purity, and we cannot wonder at the authority attri¬ 
buted justly to his treatise de jure maris, in the note to 6 Com. 536. 
“It has (says the learned annotator) been so often recognized in 
this country and in England, that it has become the text-book from 
which, when properly understood, there seems to be no appeal, 
either by sovereign or subject, upon any question relating to their 
respective rights, either in the sea, arms of the sea, or private 
streams of water.” If, indeed, the too vivid language of Mr. Wirt 


143 


[ 21 ] 

should be used in reference to any mortal, Hale, if any man, would 
justify its application, (C that with a mind beaming the effulgence of 
noon-day, he sat upon the bench like a descended God.” 

There is, however, a decision in the highest tribunal of our own 
country, the Supreme Court of the United States, which seems to 
foreclose all further questions as to this branch of the inquiry. I 
allude to the case of Martin et al vs. Waddell, 16 Peters, 406. 

As a direct decision, it does not determine the issues in this case, 
but its principles have a strong bearing in favor of the title of the 
United States. 

The question in this case arose as to the title to the subaqueous 
soil of the Raritan bay, which is exclusively within the limits of 
New Jersey. Whether it was in the grantees of the proprietors of 
East Jersey, or in the State of New Jersey, or its grantees? 

The court held, that the bays, rivers, and subaqueous soil, within 
the limits of the charter , passed by the grant of the king to the 
duke of York, as part of the jura regalia, and not as private pro¬ 
perty, and that by the surrender of the powers of government by 
the proprietaries of New Jersey, in 1702, they were restored to the 
crown as part of the jura regalia. 

They also held that, when the people of New Jersey took pos¬ 
session of the reins of government, and took into their hands the 
powers of sovereignty, the prerogatives and regalities which, be¬ 
fore, either belonged to the crown or to parliament, became imme¬ 
diately, and rightfully, vested in the State.. 

The language of the grant was partly relied on, to show that the 
Raritan bay passed as part of the jura regalia, and not as private 
property to the duke of York and his grantees. 

The bay was held to pass by the charter, though not especially 
described, merely because within the limits of the grant, and, a 
' fortiori, the river Delaware passed to Penn when specially de- 1 
scribed. 

No principle sustained by that decision can have any but a favor¬ 
able effect on the title of the United States in this case. Whether 
the river and its soil passed to Penn as part of the jura regalia, or 
as private property, all within the limits of his grant, by the revo¬ 
lution of 1776, passed to the people of Delaware, and not to the 
. people of New Jersey. Penn never surrendered the rights of gov¬ 
ernment to the crow.n, but the colony remained under the proprie¬ 
tary government until its political condition was changed by the 
revolution. Take the opinion of the court in the case cited, and 
there can be no doubt that all within the limits of the charter passed 
to the proprietary either as private property, or as part of the jura 
regalia. The right of the proprietary in the colony, as in England, 
was subject to the jus publicum of navigation, and, if you please, 
of common of piscary. The duke, his heirs and assigns, were to 
stand in place of the king, and administer the government according 
to the principles of the British constitution, page 412. Such, too, 
was the situation of Penn, as assignee of the duke. If, then, the 
island had arisen before the revolution of 1776, it must have be¬ 
longed to Penn, as standing in the place of the king, if the river 


144 


[ 21 ] 

and soil passed as part of the regalia; and if the river and soil 
passed as private property, the island would equally belong to 
Penn; and whether the river and soil passed as private property, 
or as one of the royalties, they were equally within the limits of 
the charter. The moment the island arose it became the property 
of the owner of the river and subaqueous soil; and I submit that 
any island arising, so as to become capable of occupation, in the 
river Delaware, within the limits of the twelve mile circle, would 
have belonged to William Penn, or his assigns, as proprietaries of • 
Delaware, at any time between the charter of 1683 and the revolu¬ 
tion of 1776. If, then, before the revolution, as between the pro¬ 
prietaries of New Jersey and the proprietaries of Delaware, or the 
crown and the proprietaries of Delaware, the river and its soil 
belonged to the latter, can there be a doubt that, by the effect of 
the revolution, all within the chartered limits of the colony passed 
to the State of Delaware? 

The revolution affected the political condition, but did not change 
the territorial limits of a single State. So far as the river Dela¬ 
ware, before the revolution, w T as within the territorial limits of the 
colony of Delaware, it became by the revolution a part of the State 
of Delaware. 

It is presumed this will not be denied; as in no other mode have 
the territorial limits of any of the thirteen original States been as¬ 
certained. 

All the lands we hold w r ere originally derived from the crown, 
and the power to dismember a proprietary government was not 
claimed by the crown. Johnson vs. McIntosh, 8 Wheat., 532. 

Virginia opened her land office for the sale of land in Kentucky, 
though every acre was in possession of the Indians. 8 Wheaton, 
535. 

And why? Because within her chartered limits as a colony. 

Can it be questioned, therefore, that all within the colonial 
boundaries of Delaware, as they existed in 17.76, remained within 
the boundaries of the State of Delaware after the revolution. 

This case clearly depends upon whether we have established the 
grant of Delaware to Penn as a valid grant, either in law or equity. 

If the colony of Delaware was held, possessed, and enjoyed under 
a grant, then the boundary must depend upon the just construction 
of the grant. New Jersey had no title, under, her grants, to the 
river. The general terms of bays, rivers, &c., must be confined 
to rivers, &c., within the boundaries of the granted premises. Cor- 
field vs. Coryell, 4 Wash., C. C. R., 384. 

It w r ould be absurd, and contrary to all authority, to say that a 
grant included the navigable stream bounding it, unless passed by 
special words. The grant of Delaware includes all that portion of 
the river within the twelve mile circle, by express words. 

If the right of Delaware were founded on no better title than ap¬ 
propriation, then it is admitted that she would hold only ad nlum 
aqu cC • That is the extent of her claim as regards the waters of the 
bay and river below the twelve mile circle. So, too, as between 
Pennsylvania and New Jersey; neither colour included the river 


145 


[ 21 ] 


within its chartered limits, and, therefore, each took by appropria¬ 
tion ad filum aqua?, as against the crown, by the effect of the revo¬ 
lution. And such is the rule laid down by the supreme court in 
H anly’s lessee vs. Anthony, supra. 

The title of Delaware, however, is held under grant, and not by 
prescription. 

It so happened that a dispute occurred as to her western boun¬ 
dary during her colonial existence; and it was determined accord¬ 
ing to the lines of the charter, and not on the ground of appropri¬ 
ation. 

A considerable tract of land on her western border was taken 
from Maryland, who had appropriated it, and added to Delaware, 
in settling the boundary according to the grant. This was deter¬ 
mined whilst Delaware was a colony; and had a question then 
arisen as to her eastern boundary, must not the same rule have 
governed! 

Any question which existed between the crown and the proprie¬ 
tary, which I have already discussed, was as to the whole territory. 

If the title of the proprietary was good as to part, that is, if 
the grant was valid, there existed no doubt as to the eastern boun¬ 
dary. A question has been now made as to her eastern boundary, 
and why should it be determined on a different principle from that 
which governed the settlement of her ^western boundary! That is, 
the limits included within the deed of feoffment and the patent con¬ 
firming it. 

The possession of Maryland did not protect for her, in 1750, the 
$id in her possession for many years, but within the chartered 
limits of Delaware. 

How, then, can the title of New Jersey be pressed beyond her 
chartered limits, within the limits of Delaware, unsupported by any 
possession whatever! Navigable streams within the limits of 
a State are as much a part of the State as land, and the Delaware 
river as clearly within the limits of Delaware, within the twelve 
mile circle, as Raritan bay is within the limits of New Jersey. 

Against this chartered title of Delaware, in 1776, has New Jer¬ 
sey,^"either before or since that period, acquired any title by pre¬ 
scription or adverse possession! 

The memory of man will not reach to acts previous to the revo¬ 
lution; but the possession would be presumed to follow the title, 
both as to the water and the land, within the grant, and co-exten- 
sive with it, unless a contrary adverse possession and exercise of 
right could be shown. 

Legal seisin and possession, which follows title, is co-extensive 
with the right, and continues until it is ousted by an actual adverse 
possession, as contradistinguished from residence and occupation. 
Mitchell, et. al. vs. U. S.,9 Peters, 735; U. S. vs. Arredando, et. al., 
6 Peters, 743. 

There is no evidence of adverse possession, and it cannot be 
presumed. 

There are but two islands in the Delaware river, within 
the twelve mile circle; Reedy island and the Pea Peatch, 

10 


146 


[ 21 ] 


and of neither of these lias New Jersey ever had possession. GoAse 
island does not deserve the name of an island. It is a small sand 
or mud flat, near the Pea Patch, vacant and unoccupied, and worth 
nothing. In Delaware we never fight about straws, and abhor ab¬ 
stractions. Whether my colleague considers the Wilmot proviso 
as coming within that designation, I am unable to answer. Reedy 
island New Jersey never possessed or claimed, and the Pea Patch 
she has claimed, but never possessed. These alone are the things 
capable of adverse possession. 

Then, as to prescription; if there is any evidence as to that, it is 
only as to common rights; and, as has been already shown, pre¬ 
scription for a liberty, profit, apprendre or fishery, does not acquire 
the soil. Hale de jure, 32, 33. 

But, in fact, New Jersey has no evidence showing any claim, by 
prescription, to the fisheries, much less to the river and soil of the 
Delaware, within the twelve mile circle. 

The acts relating to fisheries in 1765, 1770, (Allenson, N. J. Laws*, 
279, 367,) were conditional, and made dependant upon the passage 
of similar laws by the province of Pennsylvania, before they 
were to take effect. They could relate only to that part of the 
river between Pennsylvania and New Jersey, as Delaware was then 
a distinct colony; and they imply, if anything, that New Jersey had 
no claim to any right of fishery in the river, below the line of Penn¬ 
sylvania, or otherwise the laws would have been made conditional 
on the passage of similar laws by Delaware,'as well as Penn¬ 
sylvania. 

In 1719, New Jersey bounded her counties by the river, (N. J.^ 
Laws, 1, Bradford’s edition,) and she never attempted to extend 
those boundaries till 1822, 'post litem motarn. 

This boundary shows her own construction of her charter. 

The act of 1676, regulating fisheries in the Delaware, (Learning 
and Spicer, 390,) is the only act asserting the right to fisheries in 
the river generally. This might well be, as it was a common right 
in all the king’s subjects, while the river was ungranted and in the 
crown; and the river within the twelve mile circle was not granted 
till 1683, seven years afterwards. 

The net of 1681, regulating the fronts on the river, was no claim 
to the river; for all the people of New Jersey had the common right 
of navigation, and the boundary of the colony was at low water 
mark on the river. The act of 1783, respecting the islands and 
jurisdiction over the river, was passed in pursuance of a compact 
with Pennsylvania, and stops at the Delaware line. It can have 
no effect as to the rights of Delaware, which was then an indepen¬ 
dent State, though it might be a proper arrangement between New 
Jersey and Pennsylvania. 

As to the surveys of islands outside the circle, if proved, they do 
not touch the question; neither does possession of those islands, if 
shown, which it is not, for on no principle can the possession of 
an island, not within the boundaries of Delaware, affect the title 
of Delaware to all islands within her limits. 

I t o:uc now to the alleged survey of the Pea Patch, in 1784. 


147 


[ 21 ] 

In 1743, the council of proprietors of New Jersey issued a gen¬ 
eral warrant in favor of Samuel Atkinson and wife, for six hun¬ 
dred acres of land, anywhere in west Jersey, below Trenton Falls. 
In 1782, the same council issued another general warrant, in favor 
of Daniel Ellis, for five thousand acres of land, anywhere in west 
Jersey. By mesne assignment, one Edward Hall became the 
owner of 52^ acres of the first warrant, and one hundred and 
twenty-six acres of the second warrant. Under these warrants, 
Edward and Clement Hall caused an alleged survey to be made, 
on October 8, 1784, of the Pea Patch island; and a return of a 
survey was made, under this warrant, by Elnathan Davis, a deputy 
surveyor, of an island called the Pea Patch, containing 178 acres. 
The return was dated October 27, 1784, and approved by the coun¬ 
cil of proprietors, November 3, 1784. The answer to this is: 
That the warrants authorised a survey of land in west Jersey. But 
the river Delaware was never within the limits of New Jersey, or 
belonged to the proprietors. The location of the warrant was 
the unauthorised act of an individual, because not within the 
propriety of the council of proprietors, and therefore merely void; 
and the council of proprietors had no authority to ratify such 
survey. According to the decision in 16 Peters, Martin, et. al. 
vs. Waddell, even had the river been within the boundaries of 
New Jersey, after the surrender of the regalia, in 2719, their act 
of ratification would have been void as against New Jersey. The 
subaqueous soil within the limits of the colony, belonging to the 
crown, as part of the jura regalia surrendered, and the island 
arising after the surrender, would belong to the owner of the pro¬ 
priety of the soil; that is, the crown, before 1776, and the State 
of New Jersey, if within her limits after that period. 

But no semblance of proof of any possession of the island is 
adduced, until Doctor Gale fished there in 1813; and, indeed, in 
1784, it was incapable of possession; for, in 1780, says Judge Johns, 
and he is uncontradicted, and the oldest witness in the cause, u it 
appeared not bigger than a man’s hat.” And this accords with the 
old map produced by the other side, made by a British naval officer, 
in 1777, on which the Pea Patch is represented as a shoal, and not 
as an island. But, in point of fact, there was no actual sur¬ 
vey. The description shows this, and the attempt to adjust 
the size of the island to the interest of the • Halls, in the war¬ 
rants of 178 acres, when u it was not bigger than a man’s hat.” 

The survey was made, as alleged, in 1784, and the return is 
of one hundred and seventy-eight acres, and the island, which 
has been constantly increasing, is now, in 1847, found by actual 
measurement, by the United States officers, to contain less than 
ninety acres of land. 

But can it be seriously urged that a mere nominal survey, made 
without any authority, under a general warrant from the proprie¬ 
tors of west Jersey, who never had any title to the river, and no 
possession taken under it, till the State of Delaware ceded the 
island to the United States, can sustain a prescriptive or possessory 
title in New Jersey, adverse to the legal seisin of Delaware? If 


148 


[ 21 ] 

this be contended for, the only proper answer is “ stultum est ab- 
surdas opiniones accuratius refaellere.” 

No attempt has been made to prove that New Jersey ever exer¬ 
cised any jurisdiction, in fact , over the river Delaware, within the 
twelve mile circle; and where, then, is theevidence of prescriptive 
title ousting the legal title of Delaware? 

Has Delaware either abandoned or failed to exercise her rights 
since the revolution? We have proved by the testimony of her 
lawyers and judges, one of them Judge Johns, residing as a lawyer 
at Newcastle as early as 1780, that on all occasions she has 
claimed and exercised jurisdiction over the river within the circle. 
This is not only competent, but, from the character, pursuits and 
intelligence of the witnesses, the best testimony; and, being in ac¬ 
cordance with the rights of the State, under her charter, slight 
evidence would be sufficient, if any was necessary. 

But we have also proved particular instances as early as 1800 
and 1805, in one of which the sheriff o£ Newcastle county, with a 
posse, arrested a man on board a vessel, grounded on the Jersey 
shore; and in the other, the witness arrested a person just as the 
vessel touched the wharf, on the Jersey shore, and brought him 
back to Newcastle, where he satisfied the claim; and in neither case 
was any one ever questioned as to the rightfulness of the arrests. 

We have also shown, by numerous witnesses, that such an exer¬ 
cise of jurisdiction has been of common and constant occurrence, 
though the particular names of the parties may not be recollected. 
We have.also produced the copies of records from the State court, 
and from the district court of the United States for the Delaware 
district, showing the repeated exercise of jurisdiction over the 
river within the twelve mile circle without regard to the filum 
aquae; and, in no case, has the jurisdiction been questioned. 

And how has this mass of evidence been encountered on the other 
side? No judge or lawyer from New Jersey has been produced, to 
prove that, before this controversy arose, that State ever claimed , 
much less exercised, any jurisdiction over the river within the 
circle; yet there are lawyers and judges in New Jersey old enough 
to prove such claim if it ever was made. No single case of the 
exercise of admiralty jurisdiction within those limits has been or, 
it is believed, can be adduced. But it is not merely the absence of 
proof as to this which can be relied on. Governor Bloomfield, of 
New Jersey, was ex officio the chancellor of the State, and it is a 
rational inference to suppose that he was acquainted with the 
limits and jurisdiction of the State in which he filled so high a 
judicial station; yet, in 1813, Governor Bloomfield, then an officer 
of the United States, being authorized to procure the title to the 
island for the erection of a fort, applied to the State of Delaware 
and obtained from her the cession to the United States. 

It is impossible to suppose, that if he had ever heard of even a 
claim on the part of New Jersey, he would not have applied to the 
legislature of his own State, if not to make, at least to corrobo¬ 
rate the grant. 

Ricbr.rd Stockton, of New Jersey, the ablest lawyer the State 


149 


[ 21 ] 

has produced, and the equal of any, in the United States, was, 
when this claim was pursued in 1819, retained as one of the counsel 
of the United States to defend their title, under the State of Dela¬ 
ware. 

The opinion he expressed in writing has been lost; but its con¬ 
tents (were that necessary) could be proved to be clearly adverse 
to the title of New Jersey'. But there is sufficient proof of that in 
the character of Mr. Stockton. Moving in the highest walks of 
his profession, there were with him, as among those who most 
adorn the profession of the law there always must be, other con¬ 
siderations besides that of mere emolument to be weighed, before 
embarking in a cause. He was strongly attached to his State, and 
had he believed the title to any part of her territory, or any right of 
jurisdiction justly belonging to her to be in question,it may be as¬ 
sumed as certain, that he never would have arrayed his talents 
against the interests of a State of which he was so distinguished a 
citizen. 

It is but a just inference to say, that he knew the claim of Dr. 
Gale to be groundless, and that New Jersey had no title to the 
river within the twelve mile circle. The whole weight of the 
testimony, therefore, supports the legal title of Delaware, and ut¬ 
terly prostrates any prescriptive or possessory title in New Jersey. 

There is but one other question to be discussed in reference to 
the title, and that arises out of the opinion of Judge Baldwin, in 
the case of the lessee of Gale vs. Belin, on the trial of that case, 
in New Jersey, in 1836. In meeting this question I shall also re- 
view, generally, the opinion delivered by Judge Baldwin in that 
case. * 

No one more willingly admits, or more highly respects than I do, 
the acknowledged ability and learning of Judge Baldwin; and it is 
difficult to account for the confused character of parts of that 
opinion, and its conflict with known principles of law, except on 
the supposition that the intellect was in a state of irregular action 
at the time of its delivery. It contains many sound principles of 
law; but is in parts incongruous and confused, and has more 
throughout the aspect of a forensic argument in support of the 
title of New Jersey, than a judicial opinion. In justice to the 
x learned judge, however, it must be admitted that the case before 
him was, in many respects, vitally different as to the evidence from 
that now before your honor. 

There was no documentary evidence on behalf of the United 
States, except the two deeds of feoffment from the duke of York 
to William Penn; not a single witness was examined on their be¬ 
half, in support of the title of Delaware, whilst the loosest deposi¬ 
tions, containing much of hearsay and assertion, were admitted in 
support of that of New Jersey. The patent from King Charles II. 
to the duke of York was not before him, and its non-existence was 
asserted arguendo, and admitted by the judge in his charge to the 
jury. With all this allowance, however, the opinion is in many 
parts utterly unsustainable. 

The commencement of the charge, as to the dispossession by mil- 


150 


[ 21 ] 

itary force, was calculated to prejudice the defence, and the fact 
being irrelevant to the merits, the allusion might have been ex¬ 
cusable in counsel, but not appropriate when falling from the 
bench. The first position taken by the learned judge for granted, 
may be well questioned as doubtful. u The possession taken by the 
United States presents no objection to the trial of the right of 
possession.” Is not this doubtful? The cause was in the circuit 
court of the United States, and the defendant a civil officer of the 
United States, and as such living ofi the island. 

He was not a tenant, and the possession was admitted to be in 
the United States. Under what law was there any jurisdiction to 
sue the United States in their own courts? Suppose the defendant 
had pleaded the facts to the jurisdiction, is it certain that the court 
had any authority to proceed with the suit; and if the same facts 
appeared on the plea of not guilty, would that alter the resuU? 

There are many parts of the charge to which it is unnecessary 
to advert, and I shall notice only those which I consider material. 
The judge proceeds to place the question of title on its proper 
basis, the relative titles of Delaware and New Jersey. Then fol¬ 
lows an exposition of the law of nations, as to States having a 
river as a common boundary. This law is correctly laid down, 
and the only objection is, that it was inapplicable to the facts of 
the case and calculated to confuse the jury. 

After somewhat more of unnecessary and irrelevant learning, the 
leaned judge says: “The three lower counties were held under two 
deeds from the duke of York to William Penn, in 1682, without 
any direct grant from the crown. They were united to Pennsyl¬ 
vania in that year , and so continued till the revolution .” Here we 
have two mistakes. One, perhaps - , unavoidable; because the title 
of Delaware was not properly presented to the court, and yet 
among the laws of the Judge’s own State, the charter of King 
Chari es II. to the duke of York is recited in an act passed in 1715 to 
settle the circular boundary between Pennsylvania and Delaware, 
and is to be found at length printed in the third volume of the 
Votes of Assembly of Pennsylvania, as early as 1753. The second 
mistake is less excusable, as the slightest acquaintance with the 
history of his own State, or a reference to the printed laws of 
Delaware, which he afterwards used against the title of that State, 
would have informed him that the union between Pennsylvania and 
Delaware was absolved in 1701, and never afterwards renewed* 
and yet that fact was material as answer to much of the testimony 
as to prescription in the cause. 

The learned judge then returns to the law of nations as appli¬ 
cable to States not existing by grant, and decides against the title 
of Delaware beyond the filum aqua. The only objection to this 
is its immateriality to the case before him. 

He then proceeds to consider the title of New Jersey by grant , 
and admits that her territory extends only to low water mark on 
the river Delaware; that the river is not within the limits of the 
grant. Then follows the examination of the title of Delaware, and 
an abstract of the deeds of the duke of York to Penn is given, and 


151 


[ 21 ] 

• , - . 
two questions are stated as arising on these deeds. First, whether 

they passed any title; and, second, their construction as to bounda¬ 
ries. After stating what he declares to be fatal objections to the 
deeds on the question of title, he then assumes their validity in 
order to proceed with their construction. Much argument is then 
adduced to show that the deeds must not be so construed as to in¬ 
clude any part of New Jersey. As this has never been con¬ 
tended for, and is not called for by the natural and obvious con¬ 
struction of the grant, comment is useless. Indeed, this part of 
the argument only tends to confuse the case, and that is a sufficient 
objection. 

The opinion then proceeds as follows: 

“There are three points in the first deed: One in Newcastle; 
one on the Delaware, twelve miles north; the other on the Dela¬ 
ware, twelve miles south; but it does not purport to extend across 
the river, or to embrace any part of New Jersey within the circle, 
or, if it did, the grant would be so far void for the reason before 
given. It is of a tract of land lying on the river, the bounds of which 
must be on the bank, and not in the river, following the processof 
the circle. That this is the meaning of this deed, is evident from 
the boundaries of the second deed granting ‘that tract of land 
upon Delaware bay and river, beginning twelve miles south from 
Newcastle. 5 We have then no difficulty in ascertaining the land 
that was granted to be that which lay on the river between the 
two points, each twelve miles distant from a common centre in 
Newcastle, and from such centre twelve miles back towards Penn¬ 
sylvania and Maryland, and no other, nor beyond the low water 
mark on the river. 55 

The construction of the learned judge is thus far questionless 
correct, but when he states that “the grant does -not purport to 
extend across the river, 55 he admits the immateriality of a previous 
part of his argument, to which I have made that objection. It is 
difficult also to perceive how the meaning of the first deed is evi¬ 
dent from the boundaries of the second deed; and we shall see 
hereafter that, adopting this mode of construing one deed by the 
other, the learned judge arrives at some extraordinary conclusions. 

The opinion proceeds: 

“Then follows the grant of all islands in the said river Dela¬ 
ware, and the said river and soil thereof lying north of the south¬ 
ernmost part of the said circle of twelve miles about the said town. 
The habendum is of the said town and circle of twelve miles of 
land about the same, islands and all other,^ the premises granted, 
or intended to be so; and the same clause is in the covenant for 
further assurance, omitting the grant of the river otherwise than 
as it may be included as part of the premises granted, or in¬ 
tended to be granted. A reference to the second deed will tend 
to ascertain the meaning of the first. There is no grant of any 
part of the river or any island below the beginning point of the 
second tract. A grant of the use of the harbors, waters, &c., be¬ 
longing to the river and bay, precludes any construction which 
would make the deed pass the river, bay, or its waters beyond the 


152 


[ 21 ] 

low water line. No word or expression is in it which c©uld be 
made to include anything else; the grant is of the free use and 
passage into and out of all harbors bays, waters, rivers, isles, and 
inlets belonging to or leading to the same.” 

Here we find the learned judge, after quoting the words which 
expressly convey the river, proceeds to state that the habendum 
and covenant for further assurance omit the grant of the river; 
and though he draws no inference thus far from that fact, his view 
of its effect is afterwards distinctly developed. But he assumes 
the position that the description of the thing granted in the first 
deed is to be ascertained by a reference to the second deed, and 
draws the inference that because the bay and island are not con¬ 
veyed in the second deed, therefore, contrary to the express lan¬ 
guage of the first, the river does not pass. Against such a rule of 
construction I protest as utterly irrational and against any known 
rule of construction. The deeds were executed on the same day, 
but for distinct tracts of territory; and there is as strong reason 
for holding that, inasmuch as the river and islands pass by express 
words in the first deed, that, therefore, they were intended to pass 
by the second, and to control the grant in the first by the description 
in the second deed. 

Neither, however, is admissible. The subject matter conveyed 
is distinct in each deed, and there is no conflict in the description; 
and it might as well be said that, if a man grants white acre to A, 
reserving a right of way, and on the same day, by a second deed, 
grants black acre adjoining it to A, without any such reservation, 
the reservation in the first deed is to be treated as a nuility. In 
this case, in the first deed there is a reservation of five shillings 
rent to the duke, and, in the second, Penn covenants to account 
for and pay over to him one moiety of the rents, issues, and profits 
of the land conveyed. How absurd would be the construction that 
Penn’s covenant bound him also to pay over a moiety of the rents, 
issues, and profits of the lands conveyed in the first deed, though it 
contains no covenant to that effect; yet it would be just as reason¬ 
able as the construction by which the learned judge nullifies the 
express grant of the river in the first deed. 

The opinion then proceeds with the following sentence: a Now 
it would be a singular construction of the two deeds to hold them 
to make the east boundary of the entire grant the radius of a circle 
extending from the north and south points of the first grant across 
the Delaware in the water to the Jersey shore, and south to Cape 
Henlopen, only to the low water line.” 

The meaning of this sentence is utterly inexplicable, and, after 
studying it with close attention, I have become satisfied that it is 
beyond comprehension. It is not, however, at all singular that the 
duke should choose to convey the river Delaware within and op¬ 
posite to the shore line of the first grant, and yet not choose to 
convey the Delaware bay with the land embraced in the second 
grant, of which it formed the eastern boundary. Both tracts might 
well have been conveyed in one deed, if such difference as to the 
grant of the river and non-grant of the bay had not been intended. 


153 


[ 21 ] 


The opinion further proceeds: 

u We think the deeds are not to be so taken, and that the utmost 
latitude of construction which can be given to the first is to include 
only such islands and such parts of the river as lie between a direct 
line d rawn from the north and south points where the circle strikes 
the Delaware, and on its western bank.” 

Whence such a rule of construction is derived, we have no in¬ 
formation, nor has the learned judge enlightened us as to its pro¬ 
priety or accordance with the language of the deed. 

Irrational as the rule is, however, the learned judge does not de¬ 
cide whether it is the true construction of the grant; and yet the 
decision on this point was essential, because adopting the rule the 
Pea Patch island is within the limits of Delaware. The only in¬ 
ference that can be made is that the learned judge was unaware of 
the course of the river, and did not perceive that, under his own 
rule, a chord of the circle, drawn from the point where its periphery 
cuts the river at the north to where it cuts it at the south, would 
not only include the Pea Patch, but also part of the Jersey shore. 
The exhibition of legal acumen and geographical knowledge, in 
this part of the opinion, are equally apparent. 

The learned judge then proceeds with another mode of construc¬ 
tion, as follows: » 

u Taking the granting part of the deed with the habendum and 
the covenant for further assurance, it would admit of a still nar¬ 
rower construction. By omitting the river in the two latter clauses, 
which specially mentioned the main land and the islands, it might 
be fairly inferred that the grant was intended to cover no more, so 
as to make it conform to the second grant below the twelve-mile 
point, the grant of New Jersey to Berkley and Carteret, and of 
Pennsylvania to William Penn, all of which were limited by the 
Delaware as the boundary.” 

This part of the charge is open to two objections: not satisfied 
with his previous reference to the second deed, in order to pervert 
the description in the first, the learned judge suffers his view of 
the construction to be biassed by other grants to. other parties, and 
long antecedent, under a strange notion of conformitv. It is need¬ 
less to say that the law warrants no such rule of construction. But 
the most unaccountable defect in this part of the charge is that the 
learned judge seems totally ignorant of the difference between the 
respective offices of the premises and habendum of a deed. Be¬ 
cause the habendum and covenant, for further assurance, omit the 
words u river and soil thereof,” though all other the premises is 
the language of both the habendum and the covenant, the learned 
judge says: u it may be'fairly inferred it was intended to cover no 
more.” The ruling, therefore, is that the omission of part of the 
special description in the premise of a deed from the habendum 
authorises a construction which shall exclude from the grant what 
is fully described in the premises. If this be law, then Sheppard’s 
Touchstone is not law, and the best commentary on the illegality 
of the construction is to cite the passages which show what the 
law is: 


154 


[ 21 ] 


“The office of the premises is rightly to name the grantor and 
grantee, and to comprehend the certainty of the thing granted, 
either by express words or by that which by reference may be re¬ 
duced to a certainty, and the exception, or thing to be excepted, 
if there be any.”—Sheppard’s Touchstone, p. 74, Preston’s ed. 

Again: “The office of the habendum is to set down again the 
name of the grantee, the estate that is to be made and limited, or 
the time that the grantee shall have in the thing granted or demised, 
and to what use.”— Ibid , p. 74. 

One more quotation will suffice: 

“ And if the thing granted be left out , in all or in part , in the 
habendum , yet the grant is good , {by force of the premises ;) and , 
therefore , if one grant land to A , habendum (without naming the 
land ) to A , his heirs , Sfc.; or if one grant white acre and black 
acre to A , habendum white acre ) to A , and omit black acre; yet 
these deeds are good , and all that is contained in the premises of 
the deed doth pass in both cases .”— Ibid, p. 76. 

Can the learned judge’s violation of a rule so plain and familiar 
be otherwise accounted for than in the mode I have suggested*? 
The charge as to the construction of the deed does not stop here, 
but the climax is attained in what follows: 

“ Or if that construction would be too strict, we would be clearly 
of opinion that the grant of the “river and the soil thereof” would 
not extend beyond its main channel according to the course of the 
river opposite its western bank between the two twelve mile points 
north and south of Newcastle,upon the shore of the river. On this 
or any other view of the deeds of 1682, we think that they did not 
embrace that part of the river in which the island in question is 
situated.” 

The argument is, that the grant of the “ river and its soil,” 
means half the river, and the only wonder is, that the learned 
judge did not decide that the circle of twelve miles about the town 
meant six miles about the town, and perhaps, had the question been 
as to the western boundary, he would have arrived at that conclu¬ 
sion. This closes all that part of the charge which relates to the 
construction of the deeds, and I think it fully sustains the character 
which I have previously given to that charge. My own construc¬ 
tion of the first deed, which alone is in question, has been already 
given, and its repetition would be useless. The residue of this ex¬ 
traordinary opinion needs but little further comment. It may be 
remarked, however, that the learned judge entirely misapprehends 
and mistakes the decision of Lord Ilardwicke in the case of Penns 
vs. Lord Baltimore. 

No decision was made on the claim of the crown, but the decree 
was entered with a salvo jure; but the reasoning of Lord Hard- 
wicke shows that his opinion was against the crown on the ground 
of a trust, if not of an estoppel. In a subsequent part of the opin¬ 
ion, the learned judge appears to become convinced that, by the 
acts of approbation and confirmation by the crown, the deeds of 
the duke of York acquired the same effect as if they had been 
made under letters patent to him by the same boundaries, thus ren- 


155 [ 21 ] 

dering nugatory much of the preceding part of the charge, and 
leaving but three objections to the title of Delaware. 

1st. His own perverse construction of the deed from the duke to 
Penn. 

2d. The erroneous application of the law of prescription; and, 

3d. His extraordinary doctrine as to election of title by the State 
of Delaware. 

The question of construction I have already noticed, and as to a 
title by prescription in New Jersey, the facts before you afford it 
no shadow of support. Whether any further evidence on this point 
was adduced before Judge Baldwin does not appear, but it is cer¬ 
tain that by a singular confusion of ideas he relies upon the grant 
of islands outside of the circle by the proprietors of West Jersey, 
as early as 1739, to sustain a prescriptive right to the Pea Patch, 
which is within the circle and the limits of the grant to Penn. 

On what principle can any act of the proprietors of New Jersey, 
not in derogation of Penn’s title, be used to sustain a prescriptive 
claim against that title? A grant by those proprietors of an island 
in the Delaware outside of the circle, was repugnant to the right of 
the crown only , and could not be questioned by Penn. Within the 
circle there was, before the revolution, but one island, called 
Reedy island, and that was always in the possession of Penn. But 
the learned judge’s doctrine as to prescription may well be ques¬ 
tioned. 

The grant of an island by the proprietors of New Jersey, and 
subsequent possession for many years under the grant, might give 
title to the island, good against the legal owner; but how could 
such a grant and possession of an island, or several islands, sustain 
a title by prescription to the rest of the river and its subaqueous 
soil? The prescriptive title would not extend beyond the right 
actually enjoyed. As to the survey of the Pea Patch by the Halls, 
it has been already the subject of remark, and the possession under 
the survey, which the judge takes for granted in the case before 
him, is unsustained by the semblance of proof in this. 

We come now to another extraordinary position assumed by the 
learned judge on which he finally decides against the State of Del¬ 
aware, on the ground that by an act of the legislature of Delaware, 
passed in 1794, she repudiated and renounced the title of the Penns,, 
and therefore could not maintain her territorial limits by virtue of 
any grant made to William Penn. 

The doctrine is, that Delaware, on becoming a State, had a right 
to elect whether she would hold title under the Penns or under 
the crown, and that by the act of her legislature in 1791, she did 
elect to hold under the crown, and by so doing repudiated the 
Penn title, and could not use it to define her boundaries. 

One finds it difficult to comprehend what is meant by the right 
of election, or from whence it is derived. But if she had a right 
of election, there must have been some other party who could call 
upon her to make that election. Surely, no such right existed in 
the State of New Jersey, or in any other State, and the doctrine is 
but a flight of fancy on the part of the learned judge. 


156 


[21] 


The revolution, as has been previously stated, altered only the 
political condition and not the territorial limits of any State. The 
colony of Delaware in 1776, became the State of Delaware, and in 
regard to Delaware, as in regard to all the other thirteen States, 
you must ascertain her boundaries as a colony to define them as a 
State. Delaware became a State in 1776, and her boundaries were 
then fixed; and how could those boundaries be changed eighteen 
years afterwards by this act of the legislature? 

The learned judge says: u On becoming a State ” she had the 
right of election, but such election was not made till 1794. What 
then were her boundaries in 1776? Clearly, the boundaries cast 
upon her as a State when she emerged from her colonial condition. 

Delaware was under a proprietary government as a colony, and 
the Penns retained the u jura regalia;” and according to the ruling 
of the Supreme Court, in Martin, et al., vs. Waddell, the jura re¬ 
galia passed to the people of Delaware in 1776; and if they passed, 
it surely was over the whole territory, land, or water within the 
grant to Penn. 

I trust that I have already established her colonial boundaries, 
and in reference to the western boundary, which had so long been 
in dispute between the Penns and Lord Baltimore, the very colo¬ 
nial legislature, who elected the delegates from Delaware to the 
Congress of 1776, passed an act of assembly on the 2d of Septem¬ 
ber, 1775, ratifying the western boundary as settled finally between 
the Penns and Lord Baltimore, and making a new division between 
the counties of the State, rendered necessary by the accession of 
land on her western border.—1 Del. Laws, 567. 

If, then, the boundaries of the colony became the boundaries of 
the State in 1776, how could any act of the legislature in 1794 
change those boundaries? 

The effect of this doctrine would be to make the legislature of 
Delaware do indirectly what they could not do by an express grant 
to, or agreement with, New Jersey. 

By the constitution of the United States, art. 1, sec. 10, no State 
can enter into any agreement or compact with another State, with- 
* out the consent of Congress, and the State of Delaware could not, 
in 1794, by any direct agreement or compact with New Jersey, cede 
any part cf her soil, subaqueous or otherwise, to New Jersey, with¬ 
out the consent of Congress. Upon what principle then could she 
indirectly cede her territory to New Jersey in 1794? 

It may also be well doubted whether the legislature of Delaware 
has any authority, under the constitution of the State, to dismem¬ 
ber her territory, and yet the mode in which the act of 1794, ac¬ 
cording to the learned judge’s view, operated, was to exclude one- 
half the river from the limits of the State, and transfer it to New 

For if the whole river belonged to Delaware within the circle 
in 1776, which, for the purpose of this part of his decision, the 
judge admits, the law of 1794 operated, if at all, to cede one-half 
the river to New Jersey. It is submitted that it could have no such 
effect. , , 



f 


157 


[ 21 ] 


But in point of fact, the State of Delaware never did repudiate 
the title of the Penns antecedent to the revolution. 

The object and intent of the law of 1794 was to confiscate the 
quit rents of the Penns, and take possession of all vacant and un¬ 
granted lands in the State. It is perfectly immaterial whether, 
after the treaty of 1794 between Great Britain and the United. 
States was ratified, Delaware could deprive the Penns of their 
privatj rights of property. That was a question between the 
Penns and Delaware, and has been long since settled. 

The act of 1794. 2 Del. Laws, 1174, is a supplement to the act of 
1793, 2 Del. Laws, 1793. And being in pari materia, they must be 
construed together. The act of 1793 was passed to open a land 
office for the sale of vacant and uncultivated lands. The State had 
come out of the revolution embarrassed by debt, and the vacant 
lands within her boundaries she naturally looked to as a mode of 
payment. 

,, The act expressly confirms all titles under warrants issued before 
the year 1776; sec. 8. Is this a repudiation of the Penn title? And 
in sec. 10 and 11, a previous act, which had prohibited the issuing 
of warrants after 1776, is repealed, and all titles under any warrant 
issued before January, 1792, where the warrant had been located, 
are confirmed. This is more like an affirmation than repudiation of 
the Penn title. 

The learned judge’s notion of repudiation is drawn altogether 
from the preamble of the act of 1794, and if .he had read the body 
of the act, he would have found that all grants, patents, and war¬ 
rants, issued either by the duke of York or the Penns, previous to 
1760, are confirmed, and the quit rents abrogated. He would also 
have found that in the 2d section authority is given to grant pa¬ 
tents from the State on all warrants issued before 1776, which is 
an express affirmation of the Penn grants prior to the revolution. 
Indeed, the only matter of surprise is how any such conclusion as 
an intention to repudiate the Penn title, can be drawn from the 
law. The law does confiscate the quit rents, and appropriates the 
vacant lands to the use of the State, but with that New Jersey has no 
connexion. But how does the act operate as a repudiation of title 
in favor of New Jersey, be its terms whatever they may ? Cer¬ 
tainly not by estoppel, as all estoppels must be natural. 3 Bing. 
N. C. 69, Gaunt vs. Wairman. 

The law had no relation to New Jersey, and did not affect her 
rights. It could not extend the boundaries of Delaware as against 
New Jersey, and neither can it curtail them in favor of New Jer¬ 
sey; and, indeed, it has no possible legal relation to the boundaries 
of the State. It affected all lands within her limits, but did not 
purport to alter, and could not alter those limits. 

Virginia passed a similar act to that of Delaware as to land in 
the northern neck, and it never was pretended that such an act 
altered her chartered limits. Fairfax devisee vs. Hunter’s lessee, 
7 Cranch, 603, 632. 

The act of Delaware was a domestic act intended to regulate the 
rights.of property within her own limits. The States of this Union, 


158 


[ 21 ] 

subject to the restrictions of the federal constitution, are sovereign 
and independent States—foreign States as to each other. By what 
principle of the law of nations can one State notice or take advan¬ 
tage of the domestic regulations of another State which have no 
relation to her interests or rights? No authority but that of the 
learned judge can, I apprehend, be found in support of such a doc¬ 
trine, and he certainly has cited none to sustain him. 

I conclude, therefore, that the title to the < river Delaware, its 
soil, and the islands within the circle, was before the revolution in 
the Penns as proprietaries of the*colony of Delaware, and that the 
revolution of 1776 transferred all the rights of the Penns, over the 
river and its soil, to the State of Delaware. 

The Pea Patch island must have appeared above water some¬ 
where between 1777 and 1780, as it is marked as a shoal on the 
map produced on the other side, and it was barely visible in 1780. 

It is within the twelve mile circle, and, as at the time it arose 
the State of Delaware was the owner of the. subaqueous soil from 
which it rose, the island became of her propriety, and, by her ces¬ 
sion to the United States in 1813, the title vested in them. 

If the view I have taken of this case be correct, the second 
question becomes immaterial, and with the confident reliance I 
have upon the title of Delaware to the whole river for twelve miles 
above and below Newcastle, I should not be unwilling to leave the 
title of the United States dependent upon that title alone. My 
colleague, however, lays greater stress upon the second question, 
and I shall, therefore, briefly state the position assumed in refer¬ 
ence to it. 

Supposing the boundaries of the Slate of Delaware not to in¬ 
clude the river Delaware within the twelve mile circle, then New 
Jersey and Delaware each hold ad filum aquae. The question is, to 
which State does the Pea Patch then belong? The island is cer¬ 
tainly somewhat nearer to New Jersey than Delaware, but not the 
whole island; and if the rule adopted is, to take the distance from 
the shore to the middle of the river, the island would be unequal¬ 
ly divided, the United States being entitled under Delaware to 
about one-fourth, and the claimant under New Jersey to three- 
fourth parts thereof. The rule, however, as to the propriety of 
islands so situated, is not satisfactorily settled. Chancellor Kent 
lays down the rule thus: ‘‘Where islands are situated so as to 
cover the middle of the river, they would belong in severalty to 
the owners on each side, according to the original dividing line, 
or filum aquae, continued on from the place where the waters begin 
to divide.3 Kent’s Comm., 428. 

Under this rule, the island would become divisible; in what 
exact proportions, the evidence before your honor does not enable 
us to determine. Another rule, however, which has been adopted 
by Judge Baldwin, has convenience and reason in its favor; and 
that rule is, that the main channel is the dividing line of a river, 
and on whichever side of the main channel the island lies, it will 
be of the propriety of the State on the same side of the channel. 
The evidence as to the main channel is conflicting. By the evi- 


159 


[ 21 ] 

dence ot three surveys accurately made by the officers of the Uni¬ 
ted States in 1819,1834 and 1846, respectively) the eastern channel, 
between New Jersey and the island, is the broadest and deepest 
and straighest channel. On the other side, one or two pilots, and 
many skippers, have been examined, whose statements have been 
mainly in favor of the western channel as the main channel. 

I shall leave this evidence on its relative weight before your 
honor, reviewed as it will be more fully by my colleague. 

I have closed my argument on behalf of the United States, and I 
have to thank your honor for the patience with which you have 
listened to a discussion which has been prolonged much beyond my 
expectation. I thought it, however, but justice to the other side, 
that every point should be fully presented in the opening argu¬ 
ment, and the importance of the case also, together with the ad¬ 
verse opinion of Judge Baldwin on a former trial, rendered a more 
elementary examination of some questions expedient, than under 
other circumstances would have been deemed necessary. Every 
^'judicial opinion has some weight attached to it, and the extraordi¬ 
nary views of Judge Baldwin made it an incumbent duty to inves¬ 
tigate fully the positions of law laid down by him, and their appli¬ 
cation to the case. 

In the course of the trial, some remark fell from one of my 
learned opponents as to the excitement which appeared to exist be¬ 
tween the citizens of Delaware and New Jersey in reference to the 
title to this island. For my own part, I can only reply, that in com¬ 
mon with most of the citizens of Delaware, I entertain a very 
strong conviction of the valadity of her title, and that in Delaware 
generally the right of the State to the river within the circle to 
low water mark on the Jersey shore, is a received opinion, which 
no one supposes could be questioned. We look upon that right 
(to use the language of Lord Hale) as one of the flowers, not of 
her prerogative, but her sovereignty, and no son of hers would wil¬ 
lingly see it perish or fade. Beyond this, I am conscious of no 
excitement, though I think a comparison might well be challenged 
between the course of Delaware and New Jersey in reference to 
this island. In 1813, during the war, Delaware granted it gratui¬ 
tously to the United States, (without remonstrance or claim on the 
part of New Jersey,) in order that a fort might be erected, affording 
a common protection to both States and this beautiful city. The 
government erected that fort, and it had been destroyed by fire, 
and after the lapse of eighteen years, New Jersey made a gratui¬ 
tous grant in support of a speculative claim, which has caused the 
shores of the Delaware to remain unprotected since 1831, and had 
a collision w T ith Great Britain, wffiich a short time back appeared 
so probable taken place, not on Delaware would have rested the 
desolation and ruin w r ich might have visited the people on both 
banks of the river from its defenceless condition. So strong is my 
conviction of the title of my native State, that, if I stood alone,in 
this cause, and the decision were adverse to the United States, I 
should always feel that they had failed from the inability of their 

advocate, and not from any defect in the justice of their cause; but 
* \ 


I 


i 


ICO 


[21] 

with the acknowledged powers and commanding intellect of my 
colleague to sustain the positions I have assumed, I cannot fear even 
the assault of my learned opponents, with all their experience, elo¬ 
quence, and legal lore. I may, however, in closing my connexion 
with the cause, further say, that all the United States desire is a 
decision of their rights according to the principles of law and equity, 
and it is to be hoped that the claimant seeks no more. 


* February 1 , 1848. 

On Thursday, 27th of this month, 1 was informed, by General 
Eaton, that you desired to communicate to the Congress the argu¬ 
ments of counsel along with the award in the case of the Pea 
Patch; that Messrs. Clayton and Bayard would furnish theirs; that 
he had furnished his, and that the communication was awaiting my 
argument. This was the first intimation that I had of such inten¬ 
tion and desire. Not being in possession of my notes of the docu¬ 
ments, facts, and points of law thence resulting, nor of the cita¬ 
tions of adjudged cases, and other authorities to sustain the legal 
positions to which I spoke, (except two very small fragments,) it 
is impossible for me to attempt to write out even an abstract of 
my argument from memory, without injustice to the cause which I 
advocated. 

So far as my memory serves me, and my time will permit, I will 
endeavor to give you a general outline of my argument, which cost 
me three weeks of labor before the hearing commenced, and all the 
spare time I could command during the month of its pendency. 

On the hearing of the parties by the arbitrator, General Eaton 
offered in evidence the report of the Secretary of War to the Sen¬ 
ate of the United States, dated January 27, 1838; Senate docu¬ 
ment No. 140, of 2d session, 25th Congress, vol. 3, 1837—’38. 

To this the counsel for the United States objected. 

I cited Stainer vs. the Burgesses of Droitwich, 1 Salk., 281, to 
shew how far history, &c., is evidence, and contended this was a 
history, a narration, a confession by the government itself, by the 
War Department of the government, to a legislative branch of the 
government, and therefore ought to be received, valere quantum 
potest. 

The arbitrator rejected the document, and every part of it. 

The counsel for Mr. Humphrey (who is the representative of Dr. 
Henry Gale, deriving title from and under him) gave in evidence 
the record of the ejectment, trial, verdict, and judgment, duly cer¬ 
tified, wherein the lessee of Henry Gale was plaintiff vs. Edw. 
Belinge, defendant, and proved that Belinge was the engineer of 
the United States, in possession under the United States, and that 
the defence was made for the United States by Belinge and by the 
attorney for the United States for the district of New Jersey, Mr. 
Green; and thereupon offered in evidence the depositions of M. E. 
Hall and J. E. Brown, taken upon cross-examination, and read on 



161 


[21 

the trial of that ejectment, and proved that the witnesses were 
dead. • 

To this evidence the counsel of the United States objected. 

I cited authorities to prove that depositions in a former trial 
were evidence; that an ejectment was a fictitious action between 
fictitious parties, to try the right of possession between the real 
parties prosecuting and defending; and that the courts took notice 
ot who were the real parties in interest, although not named in the 
record. Dutchess Kingston’s case, 11 State Trials, 261, (Cobbet’s 
edition, vol. 20, p. ;) Aslin vs. Parker, 2 Burr, 666; Rex vs. Pan¬ 
cross Peakes, N. P., 219; Rex vs. Townshend, 2 Doug., 421; 3 
East, 364, 365; the King vs. Carpenter, 2 Shower, 48; Bird vs. 
Randall, 3 Burr, 1353, 6 T. R., 609; Gilbert’s Evidence, pi 20, to 
36 and 68; Bull, N. P., 231, 232; 12 Yenir Evidence, (Fb.,) p. 
218, plea 35—p 221, plea 35; 3 Comyn Digest, Evidence, (A,) 281; 
Gilbert’s Evidence, 30 to 36; Pillipps’s Evidence, 287; Calhoun 
lessee vs. Dunning, 4 Dill, 121. 

That there is a difference between pleading the verdict and judg¬ 
ment in bar and estoppel and giving it in evidence, but not as con¬ 
clusive. 

The known usage is, in cases of suits by importers against col¬ 
lectors of ports for illegal duties, that the suits are of necessity in¬ 
stituted in the State courts, where difference of citizenship does not 
authorize the suits to be brought in the federal courts. Upon affi¬ 
davit, and motion of the attorney of the United States, that the 
government is interested and bound to pay the damages if the col¬ 
lector be condemned, the suits are removed into the federal courts 
and there tried.' Upon the decision of the court and jury against 
the collector, for charging illegal duties, the damages are paid by 
the United States, and treasury instructions thereafter are conformed 
to the decision of the court, either of original jurisdiction or of tM$" 
Supreme court, if the government shall think proper to carry up 
the case to the Supreme court. 

The distinction between being a party named in the record and 
a party in interest defending, where the United States are defend¬ 
ing their officers and servants, whilst their officers and servants are 
the nominal parties, exists in the nature of things and in usage. 

That u the king can do no wrong cannot be a disseissor, nor be 
a trespasser,” are maxims of the law. But yet the agents and ser¬ 
vants of the king are held responsible for acts of disseisin and tres¬ 
pass committed against law, and by the king’s illegal commands. 

The officers and servants of the king fire not justified to commit 
disseissin or trespass by command of the king. Although the king 
cannot be sued for such; yet his ministers and agents and servants 
are responsible and amenable to the law. The command of the 
king, the approbation of the king, to disseissins and trespasses, 
does not make such unlawful wrongful acts lawful and rightful. 
The king can acquire no right by disseissin and wrong. The 
meaning of the maxim of royal prerogative, u the king can do no 
wrong,” is, that wrong is not to be imputed to him personally, but 

11 


162 


[21] 

to his ministers, agents, and servants who commit the wrongful 
acts, and they are responsible to the person aggrieved. 

The arbitrator rejected the depositions of the deceased witnesses, 
because the United States could not be sued as a defendant—could 
not be made a defendant. 

That decision I consider as over nice and technical. It does not 
look to the real truth and justice of the case, but stops short of it, 
hceret in muscus corticis. It does not reach the kernel and fruit 
of the law, but is content with the shell. The document No. 140, 
before referred to, shows that the Secretary of War was apprized 
of the pending ejectment; of the defence made by the district attor¬ 
ney of the United States; that the Attorney General w r as consulted 
about sueing a writ of error to the Supreme Court of the United 
States; and advised that it would not be successful. (See his 
opinion, document aforesaid, No. 140, p. 37, letter C, of 18th No¬ 
vember, 1837.) After the decision in this ejectment, in which the 
points decided by the court were reserved for review in the Supreme 
Court, if the United States had thought fit to sue a writ of error, 
and after the Attorney General had declined to prosecute ^ writ of 
error, a writ of possession was sued out, and the persons in pos¬ 
session, the <c employees” of the United States, took a lease and 
became the tenants of Mr. Hudson, who married a daughter of Dr. 
Gale, (then dead,) and who held the title. This was sanctioned b y 
the Secretary of War. 

To escape from the force and effect of this execution of the writ 
of habere facias possessionem, and the lease taken, the United 
States, by their attorney, instituted an ejectment in the court of the 
United States for the circuit and district of Delaware, had it served 
upon their own u employees,” who, of course, made no defence, 
and a judgment by default was taken in ten days after service of 
the declaration in ejectment, the adversary claimant, Hudson, hav¬ 
ing no notice. Under this judgment a writ of possession was sued, 
a colorable execution of the writ was made, by shewing it to the 
tenants then actually in the employ of the United States, (as they 
were .when served with the declaration in ejectment,) and not a 
thing, nor a man, was removed by virtue of this snap judgment. 
The United States sued themselves, took judgment against them¬ 
selves, and executed a writ of possession to put themselves in pos¬ 
session of what they held before exactly as they did after this writ 
of possession. Such a proceeding by the officers of the United 
States cannot, in reason, law, and equity, prejudice the rights of 
those holding under Dr. Gales’s title, his judgment in ejectment, 
and the lease taken by the United States, by the employees of the 
government, approved by the Secretary of the Department of War. 

The private right to the Pea Patch island, is derived by a survey 
made of 27th October, 1784, by the deputy surveyor general of the 
council of proprietors of New Jersey, for Edward and Clement Hall, 
approved and recorded, November 3, 1784, which was a grant of 
the land, according to the laws of New Jersey, and the decisions 
of the courts of New Jersey, which were cited; for the State of 
New Jersey has always acknowledged the rights of the proprietors 


163 


[21] 

of New Jersey according to the original grant of the duke of York 
to Lord Berkeley and Sir George Carteret, 1664, and their alienees. 

Under this grant, of 1784, Edward and Clement Hall, the gran¬ 
tees, entered and staked it out, according to the deposition of 
Morris Hall, and continued in possession until it was sold by them 
or their representatives to Dr. Henry Gale, who entered into pos¬ 
session. Dr. Gale used it as a fishery; built a house upon it in 
1813, for lodging and cooking, for the persons employed by him in 
the fishery. By articles of agreement, of 20th February, 1813, 
under seal, between Henry Gale and James C. Samiento, among 
other things, the said Gale let the fishery of the island to said 
Samiento, for ten years from and after the 20th February, 1814, 
for fishing; said Samiento to fish one net, Henry Gale one, and 
Anthony R. Gale one; to be fished alternately, if said Henry and 
Anthony should choose to so do. 

In December, 1814, by an order of a military officer of the 
United States, one hundred soldiers and forty workmen took pos¬ 
session of the Pea Patch. This was not done by an order of the 
Secretary of War, so far as appeared on the trial. Previous to 
this time, however, the Secretary of War had been negotiating 
with the corporations of Philadelphia and Wilmington, to advance 
money to the government of the United States, promising to ex¬ 
pend the whole upon fortifications on the Pea Patch island and ad¬ 
jacent, as soon as the private right to the island could be obtained. 
This private right of Dr. Gale was known to the Secretary of War, 
not only by the actual possession of Dr. Gale, which was legal 
notice to every body, but by a proposition made to Dr. Gale for 
the purchase, Dr. Gale being then on the island. This proposal 
to purchase was by General Bloomfield, (commanding the forces in 
that quarter and charged with the defence of the Delaware river 
against the British forces.) 

The actual notice which the Secretary of War had rtf Dr. 
Gale’s claim, before this order issued for taking possession by the 
military, appears by the letter before alluded to, of record in the 
War Department, a certified copy whereof was read on the trial 
before the arbitrator. 

In the correspondence between the War Department and J. T. 
Hudson, (holding the title from Dr. Gale,) it appears that for 
twenty years before that time, Dr. Gale and his representatives had 
been seeking «ompensation for this island of which he had been 
disseissed by military force. Th^t by an agreement between the 
Secretary of War and Henry Gale, the Secretary of War had 
agreed to give Dr. GUe $17,000 for his title; provided the Con¬ 
gress would make the appropriation. This agreement bears date 
18th February, 1831, and was on the next day communicated, by 
the President, to the Congress by a message of that date. (See 
document No. 140, aforementioned, pp. 18, 19.) On the 20th 
January, 1832, the subject was again presented to Congress, by a 
message of President Jackson, inviting the attention of the Con¬ 
gress to the proposed compromise. 

Other agreements were made with Dr. Gale, which failed for 


164 


[21 J 

want of an appropriation, as appears by the letter of the Engineer 
Department, of 14th September, 1837. (Document No. 140, p. 3.) 
After the judgment in ejectment, after the examination of the facts 
and charge to the jury had been made by Attorney General Butler, 
and aftei his letter of 18th November, 1837, to the Secretary of 
War, Mr. Hudson, the representative of Dr. Gale, pressed his 
claim for compensation, but could get no satisfaction. Finally, 
Mr. Humphrey, the trustee of Dr. Gale’s estate, was driven, by 
necessity, to submit to an arbitration of a single person; to give 
his deed to the United States before the arbitration commenced; 
to forego all benefit of trial by jury, and to agree that the decision 
of the arbitrator should be final. 

After the lapse of sixty-three years from the date and origin of 
the title claimed by Dr. Gale, after the lapse of thirty-two years 
and more, from the time of the dissesin, the heir and trustee of 
Dr. Gale is, of necessity, compelled, in seeking redress, to submit 
to the special final jurisdiction of a single judge, specially appointed 
by the Secretary of War, and is then called upon by the arbitrator 
to show a strict legal paper title. 

This island made its appearance in the river, above low tide, 
somewhere about 1770, and has been increased ever since. The 
reputation of the neighborhood and tradition attributes the forma¬ 
tion of this island to the stranding and wreck of a vessel on the 
bar, laden with peas. In 1784, when the survey was made for C_ 
and E. Hall, the island was much nearer to the Jersey shore than 
now. That shore has been continually washing away since the 
formation of the island. The main channel of the river, the 
greatest volume of Avater, and greatest depth of Avater then, Avas 
next the DelaAvare shore. The channel has of late years consider¬ 
ably widened and deepened next the Jersey shore. But the island 
is wet nearest the Jersey shore, and the widest, safest ship channel.., 
that now generally used by large vessels, is between the island 
and the DelaAvare shore. The maps and soundings for pilotage 
made in 1777, and about that day, sIioav the channel as being be- 
tAveen the Pea Patch island and the DelaAvare shore, and that the 
water next to the Jersey shore was shoal. 

Although the public jurisdiction betAveen tAvo States, on oppo¬ 
site sides of the river, having the river as their common arcifinious 
boundary, changes with the channel of the river, yet private rights 
acquired under the proper jurisdiction, before the change in the 
channel, are not annulled by the change of the current, nor trans¬ 
ferred as public domain to the other jurisdiction. The private 
right of property remains valid and secure through all changes of 
the channel of the river, if the land be not submerged or Avashed 
away. « • 

The question then is, Avhere Avas the channel and jurisdiction in 
1784, when the grant issued from the authorities of NeAV Jersey to 
C. and E. Hall; not Avhere it may, in 1847, after the changes which 
sixty-two years and more have worked. Upon that subject the 
proof, by charts and testimony of witnesses, is clear and conclusive 
that the island then was much nearest to the Jersey shore, and that 


165 [ 21 ] 

the main ship channel was between the island and the Delaware 
shore. 

The possession and claim of property by the two Halls was the 
first ever taken of this island, and the possession never was in any 
but the said C. and E. Hall and their representatives, and Dr. Gale, 
who purchased from them, until the United States, by the military 
order, entered upon the island in or about the latter part of the 
year 1814. 

That possession itself for thirty years was a good title by pre¬ 
scription against the heirs of Win. Penn, by the laws of Jersey as 
well as by the laws of Delaware. 

No.claim of jurisdiction was ever made to this island by the pro¬ 
prietors of Delaware, or by that State, until the grant made on the 
27th May, 1813, by the State of Delaware to the United States. 
Dr. Gale being then in actual possession, and having his fishing 
hut on the island, claiming and holding, under the conveyances 
from C. and E. Hall, and under the grant of 1784, as within the 
jurisdiction of New Jersey. 

The grant to the United States from the State of Delaware was 
not sought or authorized by any act of Congress. 

The military order for taking possession in 1814 was not author¬ 
ized by any act of Congress. It was not issued from the War De¬ 
partment. It was the mere act of a subordinate military officer. 

C. and E. Hall had the first and only possession. It was regu¬ 
larly transmitted and handed down continually through them to 
Dr. Gale, and by him held at the time when Delaware made the 
grant, and when the military force of the United States entered 
upon a full possession. The building of the house, and the lease to 
Samiento, showed the continuous claim of property, and repels any 
intention to abandon; and the claim against the United States has 
been continual and persevering. 

It is not necessary to shew a paper title. Possession is a suffi¬ 
cient title of itself when so long held. 

Possession, notoriously adverse to all the world, by one claim¬ 
ing as proprietor in fee simple, is of itself sufficient to make pre¬ 
scription begin to run, although the claim and color of title be 
u merely void.” Ewing vs. Burnett, 11 Peters, 54; Harpenden vs. 
the Dutch Church, 16 Peters, 492. 

Even against the crown, length of possession is a bar, (notwith¬ 
standing the odious doctrine of nullum tempus occurrit regi,) not 
by applying the statute of limitations eo nomine, but by presuming 
a grant from the mere fact of the length of possession, although 
the paper title produced be void, or though none at all be produced. 
Grimes vs. Smith, 12 Coke, 4; Beedle vs. Beard and Wingfield, 12 
Coke, 5; Powell vs. Millebanke, Low Purbeck’s case, King vs. 
Brown, and Mayor of Hull vs. Horner, 1 Cowper, 102, 103; Rex 
vs. Carpenter, 2 Shower, 48; Hillary vs. Waller, 12 Yez., 265, 267. 

The case of Powell vs. Millebanke was upon a period of sixty- 
three years of enjoyment of the advowson of Chester le Street 
Church, in the Bishopric of Durham, upon two presentations by 
the Millebanke family, and a grant from the crown was presumed; 


166 


[21] 

that relied on and produced as the title, containing an express ex¬ 
ception of the advowson from the estate conveyed. 

In the principal case of the Mayor of Kingston vs. Horner, Lord 
Mansfield takes the distinction between u length of time, which 
operates as a 6«r, and that which operates and is used only by way 
of evidence.” The same distinction is taken in Hillary vs. Waller, 
by Lord Erskine, shewing that claims are barred by presumption 
and length of time, to which the statute of limitations does not 
apply; as bonds, mortgages, bills in equity, and informations in the 
nature of quo warranto by the king. 

Prescription applies as well between nations as between indi¬ 
viduals, and more necessarily between nations, because of the se¬ 
rious consequences attending quarrels between nations. It is de¬ 
rived from the law of nature, and is a part of the law of nations. 

Grotius de jure Belli et Pacis, book 2, ch. 4, p. 173 to 181; Vat- 
tel, book, ch. 11, p. 174 to 178. 

The disseisin committed upon Dr. Gale cannot prejudice his 
right, even if the lands had been occupied for forty years. Litt., 
sect. 427, 430; Co. Litt., 256, 257. 

An entrv in law by continual claim is equivalent to an entry in 
deed, and entitles the disseissee to damages, with a continuendo 
for all the mean occupation; so that the occupation of the dissei¬ 
sor is to the use of the disseissee. Litt., sect. 430; Co. Litt., 257. 

A subject may gain a title against a subject by disseisin and de¬ 
scent, but the king cannot; for he can do no wrong. The preroga¬ 
tive of the king cannot do a tort J to a subject. He cannot be 
usurper of a church, nor can he be a disseisor of land. 16 Yiner, 
prero. of king, (T,) p. 564, plea 29; 2 Institute, 681; Willion vs. 
Berkeley, Plowdon, 246. 

From these doctrines and decisions and examples, given in the 
cases cited, it appears that the disseisin committed by the govern¬ 
ment ought not to wrong or prejudice Dr. Gale and those claiming 
under him; nor be any protection to those persons who were upon 
the land, from being sued in the ejectment brought by the lessee of 
to Gale; nor break the continuity of Dr. Gale’s possession; nor harm 
his right and title. The whole possession must be accounted for 
Dr. Gale and his i.eirs, &c., from the time of the disseisin; and so 
the title is good by length of time, which has ripened his posses¬ 
sion, and that of his heirs, &c., into a complete right against all 
the world. 2 Black. Com., chap 13, 198, 199. 

New Jersey was a proprietary government, originally under let¬ 
ters patent, from King Charles II. to James, duke of York, bear¬ 
ing date 12th March, 1664, for a large tract of country, including 
the main land of New England from St. Croix, and the main land 
between the two rivers, Connecticut and Hudson, and all the land 
from the west side of the Connecticut to the east side of Delaware 
bay. And, also, all those several islands, called Martin’s Vineyard 
and Nantucket, u together with all the lands, islands, soils, rivers, 
harbors, mines, minerals, quarries, woods, waters, lakes, fishings, 
hawkings, huntings, fowlings, and all other royalties, profits, com¬ 
modities, and hereditaments to the said several lands and premises 


167 


[21} 

belonging and appertaining, with their, and every of their appurte¬ 
nances,” to have and to hold of the king after his manor of East 
Greenwicke, to the said James, duke of York, his heirs and assigns 
forever. 

By these letters patent all the powers of government are granted, 
so that the laws to be made shall be not repugnant to the laws and 
statutes of England. 

By deed of conveyance, of 24th . June, 1664, James, duke of 
York, granted to Lord Berkeley and Sir E. Carteret the lands and 
powers of government, bounded by Manhitas island, eastward by 
the main sea, and part by Hudson’s river, u and back upon the west 
Delaware bay, and extending southward to the main ocean as far 
as Cape May at the mouth of Delaware bay, and northward as far 
as the northernmost branch of said bay or river, which is 41° 40" 
of latitude, and crosseth over thence a straight line to Hudson’s 
river in 41° of latitude,” to be called New Jersey, with all rivers^ 
mines, minerals, fishings, fowlings, and all other royalties, profits, 
commodities, to the premises appertaining, as fully as granted to 
said James, duke of York, by King Charles. 

After the couquest of the Dutch and Swedes, who held the coun¬ 
try of Long island and New York, and on the river Delaware, and 
after the treaty between Great Britain and the Netherlands, King 
Charles II., by letters patent, dated 29th June, 1674, confirmed his 
former letters patent to the duke of York, who, thereafter, by sev¬ 
eral deeds, confirmed the several proprietors of east and west 
Jersey, according to the several deeds of partition which those pro¬ 
prietors had made. 

The duke’s deed of confirmation for west New Jersey bears date 
August 6, 1680, to Wm. Penn, Edward Belinge, Gawn Lowry, and 
N. Lucas. 

Previous to this, King Charles II., by letters patent of June 13, 
1674, acknowledged the rights of the proprietors of New Jersey, 
and of their powers of government. 

King Charles the first had, by his letters patent, bearing date in 
the eighth year of his reign, granted to Lord Baltimore the tract of 
country called Maryland, between the ocean on the east and the 
bay of Chesapeake on the west, &c., &c., unto that part of the bay 
of Delaware on the north which lieth under the fortieth degree of 
north latitude, from the equinoctial line, where New England i& 
terminated. And the tract of country passing from said Delaware 
bay in a right line u unto the true meridian of the first fountain of 
the river Pottowmack;” thence down that river to a certain place 
called Cinquick, near the mouth of said river in the bay of Chesa¬ 
peake; thence by the shortest line to Watkins’s point, so that all 
the land divided by said line between the main ocean and Watkins’s 
point be excepted. 

And to Lord Baltimore were likewise granted all islands, rivers, 
fishings, fowlings, islands, and all other royalties, &c., with the 
powers of government, to hold of the crown, &c. 

By these royal charters two colonial proprietary governments 
were created, by the crown of Great Britain, having the Delaware 


168 


[21] 

bay or river as a common arcifinious boundary between them; Ma¬ 
ryland having all the country bordering on the west side of the 
Delaware bay or river, and New Jersey having the country border¬ 
ing on the east of the same river or bay. 

According to the established law of nations, each colony having 
such arcifinious boundary extended in jurisdiction to the middle of 
the bay or river, u ad medium Jilum aquce ,” to the middle line of the 
channel. 

The rule of international law is : 

“ If neither the one nor the other of the two nations, bordering 
on the river, can prove that it settled first in those countries, it is 
to be supposed that they both came there at the same time, since 
neither can give any reason of preference; and in this case the do¬ 
minion of each will be extended to the middle of the river. 

“ If the country which borders on a river has no other limits than 
the river itself, it is in the number of territories that have natural 
or indetermined limits, (territoria arcifinia,) and it enjoys the right 
of alluvion. 

' “For if I take possession of a territory, declaring that I will 
have it limited by the river which washes it; or if it be givei> upon 
this footing, I, by this means, enjoy the right of alluvion. 

“In case of doubt, every country lying upon a river is presumed 
to have no other limits but the river; because nothing is more natu¬ 
ral than to take a river for a boundary when a State is established 
on its borders; and wherever there is a doubt, that is always to be 
presumed which is most natural and most probable. 

“ There are three sorts of lands; one sort is limited, because it 
is enclosed by limits made by the hands of man; another is com¬ 
prised within some certain determinate measure, as hundreds, sup¬ 
pose, and acres; and a third is arcifinious; called so, because it has 
boundaries fit to keep the enemy out , fines arundis hestibus. 

In arcifinious land, the river, by gradually altering its course, 
does also alter the borders of the territory; and whatever the river 
adds on one side, shall be under his jurisdiction who has his lands 
there; because both nations, between which the river runs, are sup¬ 
posed to have taken originally the middle of the river for a natural 
boundary.” 

Grotius, of War and Peace, book 2, chapter 3, pp. 161, 169 and 
171; Vattell, book 1, chapter 22, sections 267, 268, 269, 275, 276, 
277, pp. Ill, 112; Handley, vs. Anthony, 5; Wheat, 375. 

Barbeyrae and Gronovius derive arcifinious boundaries “ab arun¬ 
dis finibus,” because such lands had no boundaries fixed and deter¬ 
mined by any certain measure. 

It is not doubtful in matter of general history, and documentary 
evidence, that the colony of New 7 Jersey is older than the colony 
of Delaware. In the political family register of nations in British 
America, New Jersey is older, in her political birth as a colony, 
than her sister Delaware. There is no just foundation for this 
claim, set up by this younger sister Delaware, to exclude her elder 
sister New Jersey from that equality and natural partition of pro- 


169 [ 21 ] 

perty in the river which runs between them, which is the birth¬ 
right of nations. 

The w T ater of the river, or of the sea, so far as it may be appro¬ 
priated by a nation, becomes the property of the nation “as a de¬ 
pendence on the country it possesses.” 

Vattel, book 1, chapter 23, page 118, sections 287, 288,289,290. 

Grotius speaks of this property, in the sea and arms of the sea, 
as “an appurtenance to the grc^und;” or “as surrounded with the 
land,” although not on all sides. 

Grotius, book 2, chapter 3, par. 8, 10; section 2, par. 13; sec. 2, 
pp. 162, 164, 167. 

In paragraph 8, above cited, Grotius says: “It seems to appear 
that the property and dominion of the sea might belong to him who 
is in possession of the lands on both sides; though it be open above 
as a gulf, or above and below as a strait; provided it be not so'great 
a part of the sea that, when compared with the lands on both sides, 
it cannot be supposed to be a part of them. 

“And now what is lawful for one king or people, may be lawful 
also for two or three; if they had a mind to take possession of a sea 
thus enclosed within their lands; for it is in this manner that 
a river, which separates two different nations, has first been pos¬ 
sessed by both and then divided.” 

The case of Handley vs. Anthony is relied on as confining New 
Jersey to low water mark, (5 Wheat., 375.) 

The dissimilarity between the case of the grant by Virginia to 
the United States, and the grant by the royal charter to the duke of 
York, appear upon examination to be very material. 

Virginia, owning the lands on both sides of the river Ohio, granted 
to the United States “the territory situate, lying and being to the 
northwest of the river Ohio.” Not a word of islands, fishings, 
fowlings, and all other royalties, profits and commodities. But in 
making the Delaware the boundary of New Jersey, islands, fishings, 
fowlings and all other royalties are conveyed. 

Virginia was conveying away the territory to a jurisdiction and 
sovereignty superior and paramount. New Jersey was held of the 
crown as a seignory, as a colony, the king having a controlling 
power.. 

If Virginia had used the same words in her grant to the United 
States, which are used in the grant of New Jersey, of islands, fish¬ 
ings, fowlings, and all other royalties, the jurisdiction to the middle 
of the river would have passed. Such words show the intent to 
include; the want of them, but especially the cautious words of the 
grant of Virginia to the United States, show the intent to exclude 
the river from the grant. Chief Justice Marshall therein said the 
rule is: “When a great river is the boundary between two nations, 
if the original property is in neither, and there be no convention, 
each holds to the middle of the river.” 4 Wheat., 379; Handley vs. 
Anthony, 16. 

Bays and rivers, as far as the tide ebbs and flows, are arms of the 
sea, and properly belong to the nation or nations owning the lands 
and shores which are washed by such arms of the sea, as being ap- 


170 


[21] 

pendages and appurtenances necessary and proper to the shores and 
adjacent lands; indispensahly necessary to the people owning and 
inhabiting the country bordering on the arms of the sea. 

The water itself is continually flowing and changing, and is inca¬ 
pable of being owned and possessed, except by a prince or nation 
owning the lands which enclose the arms of the sea, as appurten¬ 
ances to the land, indispensable to their use, convenience, trade and 
commerce. # 

When did a nation ever claim, or have jurisdiction and domain, 
in an arm of the sea, without having jurisdiction or domain in any 
of the shores.or lands which shut in such bay, river, or arm of the 
seal No nation would submit to such a foreign claim of jurisdic¬ 
tion and domain by such a foreign nation. Such a detached, float¬ 
ing, flowing property, would be contrary to the law of nature and 
of nations. 

In establishing a colony on this and on that side of the Delaware 
bay or river, each colony having the bay or river for a natural arci- 
finious boundary, it is reasonable to conclude that the jurisdiction of 
each colony extended to the middle line of the bay and river; so that 
all crimes, misdemeanors and breaches of law, committed on the 
water, should be cognizable in one or the other of the jurisdictions. 
To suppose that all offences against the laws, committed on the bay 
or river Delaware, were cognizable only in the courts in England, 
would introduce an intolerable grievance to the colonies; would re¬ 
quire witnesses, to establish the guilt of offenders, to be trans¬ 
ported three thousand miles across the ocean to the place of trial; 
encourage crimes by the facility of escape from punishment, and be 
pregnant with inconveniences and absurd consequences, totally un¬ 
worthy of a king of Great Britain towards British subjects. 

As soon as the proprietary government of New Jersey was or¬ 
ganized, before the colony of Delaware had an existence, and ever 
after, the legislature of New Jersey claimed and exercised jurisdic¬ 
tion over the bay and river Delaware beyond low water mark on 
the Jersey shore. 

In 1676, by the concessions and agreements between the proprie¬ 
tors and forty-two freeholders of New Jersey, signed by the pro¬ 
prietors and freeholders, Win. Penn being himself one of the pro¬ 
prietors and signers, jurisdiction was claimed from the Jersey shore 
beyond low water mark, and convenient portions for wharves, quays, 
and harbors, were granted by the proprietors of New Jersey to the 
freeholders and inhabitants of New Jersey; and it was thereby de¬ 
clared that the inhabitants of w T est New Jersey have the liberty of 
fishing in the Delaware river. Various laws were passed, from 
time to time, regulating the fisheries, and levying duties on all boats 
and vessels navigating the bay and river Delaware. Neither did 
such laws receive the royal veto. 

In 1682, the duke of York made two deeds of feoffment to Wm. 
Penn, (then one of the proprietors of New Jersey as a trustee,) by 
one of which the duke pretended to grant the lands on the Dela¬ 
ware bay or river, within the compass or circle of twrelve miles 
about the town of Newcastle, and the submerged soil north of the 


171 


[21] 

southernmost part of the circle; and by the other deed he pretended 
to grant the lands on the bay or river within a line u beginning 
twelve miles south from the town of Newcastle and running south 
to the Hoarkills, otherwise called Cape Henlopen.” 

By force of this deed of feoffment, for the compass or circle of 
twelve miles about Newcastle, the State of Delaware now claims 
jurisdiction over the river to low water mark on the Jersey shore. 

To these deeds of the duke of York there are these objections: 

1st. The lands on the west side of the river and bay, within both 
deeds, had been previously granted, by the royal charter of Charles 
I, to Lord Baltimore, being the colony of Maryland. 

2d. The twelve miles circle would*extend over into New Jersey, 
taking in a large part of the county of Salem, and all the town of 
Salem, in New Jersey, previously granted and confirmed to the pro¬ 
prietors of New Jersey. 

3. There was no land on either side of the river, which was within 
the power or authority of the duke of York to grant: and the river 
had passed before to the proprietary government of Maryland, and 
of New Jersey respectively. 

4. The duke of York had no title whatever. As the commander 
of the British forces in the conquest of the Dutch and Swedes he 
acquired no title; the lands conquered belonged to the crown of 
Great Britain, not only because cf the conquest, but by reason of 
the prior title of the crown of Great Britain, as the first discoverer 
and possessor of the country. This principle was judicially deter¬ 
mined in the case of Campbell vs. Hall, 1 Cooper* 204, 208, and in 
Calvin’s case, 7 Coke, 17. 

These two deeds were, therefore, void in the beginning, and no¬ 
thing passed to Wm. Penn. The duke of York had no title, had 
nothing to pass, nothing to convey. So far as respects the lopping 
off of this circular grant, upon the previous grant to New Jersey, 
Penn, as a trustee, could acquire nothing in derogation of the rights 
of his cestui que trusts; he was fully notified that the proprietary 
government of New Jersey claimed and exercised jurisdiction over 
the river to the middle of the river, and he himself had so conceded 
and agreed with the freeholders and inhabitants of New Jersey in 
1676. (Learning’s and Spicer’s collection of New Jersey laws, &c., 
page 390.) 

But, in 1683, the duke of York obtained, from Charles II. a royal 
charter to the duke for the boundaries expressed in the two deeds 
of feoffment, from the duke to Wm. Penn, in 1682. But the duke 
of York did not, after the date of the king’s charter to him of 1683, 
make any further conveyance or assurance to Wm. Penn. 

But it is said, that the royal charter to the duke of York, by ope¬ 
ration of law, confirmed and made good Penn’s title to the circular 
boundary, and to the lands included between the tangent to the cir¬ 
cle and the bay of Delaware. 

To this proposition there are these objections and insuperable 
obstacles: 

1st. As to the royal charter of 1683, it could convey nothing 
which had been previously granted to Lord Baltimore, on the Ma- 


[ 21 ] 172 

ryland side, and to the proprietary government of New Jersey, on 
the Jersey side. 

2d. The royal charter was void, because the king was deceived 
and made to include, in this charter, lands previously granted to 
Lord Baltimore, as well as lands previously granted to the proprie¬ 
tary government of New Jersey. Black. Com., book 1, chap. 7, 
p. 246, and book 2, chap. 21, p. 348. 

3. The deeds of feoffment to Penn, being void in. the beginning, 
could not be made good or confirmed. Quod ab initio non valet, 
in tractu temporis non convalescit. Bishop of Salisbury’s case, 10 
Coke, 62; Vernon’s case, 4 Coke, 2-6; Co. Litt. 35, 352-6; Brett 
vs. Rigden, Plowden, 343 and 344; Smith vs. Stepleton, Plowd., 
32; Noy’s Maxims, 9, p. 10, old ed., 4. 

This is not like the deed from Craig to Gratz, upon which the 
question arose in Barr vs. Gratz, 4 Wheat., 215. In that case, 
Craig had a good estate in the land when he conveyed to Gratz; 
Craig had a warrant, entry, and survey, upon which the grant is¬ 
sued in due course of law. The deed was not void, but good and 
valid from the beginning, and conveyed an inchoate, valid interest. 

4th. The law would be made to do wrong to lord Baltimore, and 
to the proprietary government of New Jersey, and make a second grant 
of the crown conflict with former grants; whereby the rules of law 
and right would be authors of injury, which is the highest absurdity. 
The duke of York certainly could not, as a subject, nor as king, 
make any deed in conflict with the royal grant of Charles I. to 
George Calvert, Lord Baltimore, for the territory called Maryland, 
nor in conflict with his own previous deed to the proprietors of 
New Jersey. His first duty and first trust was to make good, and 
especially not to act inconsistently with, his first obligations and 
first assurances. 

It is palpable that the duke of York’s deeds to Penn were null 
and void as conveyances, for he had nothing, no estate, right, or 
title, to convey to Penn; no interest, legal or equitable. Neither 
the duke of York nor Penn could disseize their sovereign, Charles 
II., if he had any right, title, or interest, within the twelve miles 
circle to be disseized of. The king cannot be disseized, nor guilty 
of disseisin. 16 Viner, p. 564, pi. 29; Black. Com., vol. 1, p. 
246. 

The contract between Lord Baltimore and Penn of 1739, and the 
decree of specific execution in the first in chancery between them, 
made by Lord Hardwicke in 1750, 1 Vez., sen., 444, is brought in 
aid of Penn’s title to the circular or bounuary. 

Penn and Lord Baltimore were the sole parties. 

Who will pretend that by a suit against Lord Baltimore by Penn 
for specific execution, Penn could acquire, or the chancellor de¬ 
cree, that which Lord Baltimore never had, never agreed to con¬ 
vey, never had ability to convey? 

It is not pretended that Lord Baltimore’s royal grant for Mary¬ 
land extended across the river to the low-water mark on the Jersey 
shore. Did Lord Baltimore, by his letters patent for land border¬ 
ing on the west side of Delaware bay or river ever pretend to run 


173 


[21] 

across the river and to cut into the county of Salem, in New Jer¬ 
sey, and take the whole town of Salem? Could Penn, as one of 
the proprietors and a trustee of west New Jersey, bargain with 
Loid Baltimore, under pretence that Lord Baltimore’s grant had 
any such extension beyond the middle of the river? Could the pro¬ 
prietory of New Jersey, not party to the agreement between Penn 
and Lord Baltimore, not party to the suit in chancery, be divested 
of then rights, or be concluded by a decree for specific execution? 

As far as Lord Baltimore’s patent from Charles the 1st extended, 
and no further, the agreement between Penn and Lord Baltimore, 
and the decree of Lord Hardwicke, reached. It is as ridiculous to 
talk of getting a title by a decree against Lord Baltimore for the 
whole of the circle of 12 miles around New Castle, and to the 
whole river, and bed of the river, over to-low-water mark, on the 
Jersey shore, as to talk of making a silk purse of a sow’s ear; or as 
it would be to suppose that the arbitration between the United 
States and Mr. Humphrey, a citizen of New York, can conclude 
, and divest the State of New Jersey of her jurisdiction, confine it 
to low-water mark, at the Jersey shore, and transfer the residue to 
the State of Delaware. 

Neither Wm. Penn nor Lord Baltimore, in their agreement of 
1732, had any power to contract for New Jersey; nor to compromit 
the rights of the colony of New Jersey by a bill and answer and 
decree of the court of chancery in England for specific execution 
of a contract to which New Jersey was not a party contracting, nor 
a party in the suit. Lord Hardwicke, in his opinion and decree, 
states the case as a matter in personam between the parties to the 
suit, and as not binding the tenure of the planters, nor the rights 
of the crown, nor the rights of any person not a party to the suit. 

Various depositions have been taken of the ex-judges, ex-chan¬ 
cellors, &c., &c., of the State of Delaware, to prove that the State 
of Delaware had always exercised u exclusive jurisdiction” over the 
river Delaware within the 12 miles circle. That there is an array 
of great names in these depositions is most true. Nevertheless 
these gentlemen cannot personally know, nor pretend to know of 
their own knowledge, what happened in New Jersey for years be¬ 
fore they were born; nor what happened when they were asleep. 
Nor did their mortal visions take in always what happened upon 
the river within the compass of the 12 miles; neither could 
they personally know what transactions were had in New Jersey 
whilst they were in the State of Delaware, and there transacting 
business. The exclusive jurisdiction of the State of Delaware so 
attempted to be proved by these depositions, is in its nature a nega¬ 
tive; the testimony as to that amounts to nothing more than they, 
living in Delaware, did not know all things which had been traire- 
acted in the State of New Jersey. 

The public records of New Jersey afford abundant testimony of 
the assertion and exercise of jurisdiction on the bay and river of 
Delaware, by the people of New Jersey, from the upper line of 
their territory, down to the mouth of the bay, without any excep¬ 
tion; of the circle of twelve miles; of various acts of the assembly 


174 


[21] 

of New Jersey, from 1676, down through the proprietary govern¬ 
ment, and the provincial government, and the State government of 
New Jersey. A list of those acts is not now in my possession or 
power. The Pea Patch island itself was the subject of suits in 
the orphan’s court, in the common law court, and of executions, 
and sales under judgment, and decree of the courts of New Jersey, 
as shown by the records produced, and given in evidence. The 
affirmative acts of jurisdiction of the constituted authorities of New 
Jersey, which were given in evidence, are fully sufficient to rebut 
the negative evidence of “exclusive jurisdiction” exercised by Del¬ 
aware, as attempted in the depositions. A jurisdiction exercised 
by one court in a variety of cases, is not proof that another juris¬ 
diction has not acted upon other cases of like kind. The concur¬ 
rent jurisdiction, exercised by the federal and State courts in the 
like kind of cases, is a familiar example to illustrate the truth, that 
a jurisdiction exercised by the federal courts, in actions by citizens 
of one State against citizens of another, is no evidence that the 
State courts have not exercised jurisdiction in actions by citizens 
of one State against citizens of another; nor do particular examples 
of such jurisdiction, exercised in the one court, and in the other, 
conduce to prove that either of the courts have the exclusive juris¬ 
diction. 

No people bordering on a navigable bay or river where the tide 
flows and ebbs, can be confined on either side to low water mark on 
either shore. Nature has rendered it impracticable. Wharfs, 
quays, docks, and other conveniences for trade and commerce 
must, and will, necessarily be extended beyond low water mark, 
so that, boats, vessels, and ships may, at all stages of the tide, lay 
to, and lake in, and discharge cargo and passengers. No observant 
man can go by water from the town of Salem, in New Jersey, to 
Philadelphia, without seeing these conveniences and necessary ac¬ 
commodations for trade and intercourse, projecting from the Jersey 
shore, beyond the line of low tide, into the water of sufficient depth 
to admit vessels to come alongside. 

I have examined various maps, ancient and modern, of the State 
of Delaware, and have never yet found one on which the circular 
boundary of the State is represented as extending across the river 
to the opposite shore: uniformly it is represented to the margin of 
the shore of that State. Bradford’s illustrated maps of the United 
States, published in Boston, executed in the best style, and with 
great research for accuracy and utility, represents the circular 
boundary of the State of Delaware, not as extending aeross the 
river, but describes its geographical boundaries; and among others, 
that it is bounded by the middle of the Delaware bay. 

* he map exhibited to Lord Hardwicke, in the case of Penn vs. 
d Baltimore, represented the circular boundary as stopping at 
the margin of the river, on the western shore of the river. The 
venerable chancellor did not suppose that his decree of specific 
execution between Penn and Lord Baltimore could ever be used 
as binding the rights of New Jersey and of the crown, to whom 
the proprietors of New Jersey had surrendered the powers of gov- 


175 


[21] 

eminent (but not their private rights) in 1702; and which surrender 
had been accepted. His decree expressly negatives any such effect. 

The point was pressed that Penn had no title. Lord Hardwicke 
finally disposed of that question in these words: “But what ends 
this point of want of title to convey is, that no part of the lower 
counties is left to be conveyed by plaintiffs to defendant, so that 
nothing being to pass by plaintiffs, it is net material whether they 
have title to convey or not. 57 —(1 Vez, sen., p. 453, 454.) And he 
concludes his opinion on the merits by saying: “I am of opinion, 
therefore, to decree a specific performance of this agreement with¬ 
out prejudice to any right, &c. of the crown.”—(p. 455.) 

This case, of Penn vs. Lord Baltimore, was not evidence against 
Mr. Humphrey nor evidence against the State of New Jersey; the 
facts and the decree in that cause bind no body but the parties to 
that suit. As to the particular facts stated in that record and de¬ 
cree, taken in a case to which neither the State of New Jersey nor 
the crown, nor any body but the plaintiff, Penn, and the defendant, 
Lord Baltimore, it w r ould be extraordinary that Mr. Humphrey and 
the State of New Jersey should be concluded by depositions, 
wherein they had no opportunity to cross-examine, no opportunity 
to bring countervailing testimony, no time nor place to allege and 
prove facts not alleged nor brought to the notice of Lord Hard¬ 
wicke. Little did that great man conjecture, after the very guarded 
manner in which he thrice expressed himself, that the decree would 
bind no body but the parties to the suit; that his decree would be 
relied upon to put a title in Penn to the whole river Delaware to 
low water mark on the Jersey shore, a matter never pretended to 
have any color, under the royal grant of Maryland, to Lord Balti¬ 
more, the defendant, and which notion is totally inconsistent with 
the grant. 

If Lord Baltimore’s agreement had been urged, as binding him 
to convey the submerged soil of the river, all the towrn of Salem, 
and a great portion of the county of Salem, in New Jersey, held 
under the royal charters of 1664 and 1674, and asked damages be¬ 
cause of Lord Baltimore’s contracting to convey the submerged 
soil of the river and dry lands, in Jersey, which he had no pre¬ 
tence of title to; and Lord Baltimore had answered that Wm. Penn 
had seen and read the royal charter for Maryland; that Wm. Penn 
was himself one of the proprietors of New Jersey, holding under 
the royal charters of 1664 and 1674; that Wm. Penn himself 
claimed, under those charters, as valid and as giving title and juris¬ 
diction to all the land on the Jersey shore, and as extending also 
into the river, including the fisheries, wharves, and all royalties; 
therefore, that such construction of the agreement was totally 
erroneous, and a fraud and imposition upon the defendant, \^hat 
would have been Lord Hardwicke’s decree? And,now, when none 
of those questions were presented, can the United States be at 
liberty to stretch Lord Hardwicke’s decree as far as it is conve¬ 
nient to the interests of the United States, and bind New Jersey, 
and Dr. Gale’s heirs and Mr. Humphrey’s, by such forced con¬ 
struction of the decree? 


176 


[21] 

The depositions taken on behalf of the United States, prove that 
all titles in the State of Delaware are incepted and deduced from 
Wm. Penn’s title, and that of his heirs. Be it so. IIow did the 
State of Delaware acquire the title of Penn s heirs? there is no 
deed of conveyance; no grant from Penn or his heirs to the State 
of Delaware. 

The title to the State is derived by an act of the legislature of 
Delaware of 1794, denouncing the claim of the proprietors u as 
not founded either in law or equity,” and claiming all the lands as 
belonging to the people of the State, by virtue of the treaty of 
1783, between the United States and Great Britain. 

Upon this mode of asserting title these remarks are due: 

1st. This confiscation act is contrary to the treaty of 1783 itself, 
which, provides u that there shall be no future confiscations made,” 
and by another article Congress stipulated to recommend to the 
States to restore confiscated estates. Moreover the constitution 
of the United States prohibits any State to pass any law impairing 
the obligation of contracts. 

By the treaties between the United States and Great Britain of 
1783 and of 1794, and by the constitution of the United States, 
the confiscation act of Delaware is null and void, and gave no title 
to the State. 

Fairfax’s devisees vs. Hunter, 7 Cranch, 618—627. 

Dartmouth college vs. Woodward, 4 Wheat., 518. 

Society for Propagation of Gospel vs. New Haven and Wheeler, 
8 Wheat., 481,482. 

Th,e State having disclaimed and denounced the title of the pro¬ 
prietors, cannot now resume it. 

If the State took the title of the proprietors, by the act of 1796, 
they took it cum onere, with the statute of limitations running. 

If the title to the river and the island remained in the crown, as 
suggested by Sir Philip Yorke, Northey, et al. then, at the declap*- 
ation of independence, the middle of the river became the boun¬ 
dary of the two States; for the United States acquired no territory, 
no jurisdiction and domain. 

Johnson vs. McIntosh, 8 Wheat., 584. 

Harcourt vs. Gaillard, 12 Wheat., 527, 528. 

The title and possession of the Pea Patch island had remained 
in E. and C. Hall, and their heirs, and Dr. Gale, from 1784, with¬ 
out disturbance, for thirty years before possession was taken by the 
United States by the military. 

New Jersey, from 1674, had claimed and exercised jurisdiction 
over the river and bay without exception, without any adversary 
right asserted by Delaware; the first notice of any dispute of ju¬ 
risdiction was by the act of Delaware in ceding the Pea Patch 
island to the United States, in 1813. 

During the regal government, disputes of jurisdiction and boun¬ 
dary were cognizable by the king and council. 

By the articles of confederation the Congress had the power to 
adjust all disputes about boundary or jurisdiction between the 
States, and the inamer of executing that power was specially pro- 


177 


[21] 

vided. That power was conferred by the constitution of the 
United States upon the supreme court, as a part of its original ju¬ 
risdiction. 

During five generations and more, for a hundred and fifty years, 
the jurisdiction of New Jersey had been claimed and exercised upon 
the river without let, hindrance, or complaint, from the colony or 
State of Delaware. 

It has been the misfortune of Doctor Gale and his family, to 
have been drawn into a controversy with the United States about 
this island, the title and possession whereof had existed for thirty 
years, without notice of any adversary claim. 

Doctor Gale was dispossessed by the military of the United 
States. 

For the acceptance of the cession from the State of Delaware 
there was no act of the Congress. 

For the taking of the possession there was no act of the Con¬ 
gress; no order of the President; no order of record in the War 
Department. The order was issued by a subordinate military officer; 
a hundred soldiers and forty laborers were sent to take possession. 

From 1814 to this time, a period of thirty-two years and more, 
the military of the United States have held the possession; and, as 
yet, no compensation has been made. 

The decision of one suit in a court of the United States, upon 
defence by the United States, by verdict and judgment, has been 
but the forerunner of another litigation. In the meantime Doctor 
Gale died, and those claiming by and under him have been under 
the necessity to submit to any terms that promised compensation. 
Two important witnesses have died, and their depositions, taken 
upon cross examination, have been rejected; the claimant was re¬ 
quired to convey his title in advance, and to forego a trial by jury, 
and submit to the final arbitrament of a single arbitrator. 

In a government called a government of laws and not of men, 
with a constitution which declares that “ no person shall be de¬ 
prived of property without due process of law, nor shall private 
property be taken for public use without just compensation,” the 
island has been seized without process of law, thirty-two years 
have elapsed without any compensation made. “ Tell it not in 
Gath, publish it not in the streets of Askalon, lest the daughters of 
the Phillistines rejoice.” 

A wound has been inflicted upon the constitution. No satisfac¬ 
tion has been made to the person aggrieved. If the island was 
necessary for public use and national defence, yet compensation 
was due, and ought to have been macfe promptly and justly. 

A case parallel, in some respects, is recorded in the XXI. chap. 
II Kin^s. Ahab, king of Samaria, wanted the vineyard of Ne- 
both, near unto the king’s palace. By the advice of Jezabel, his 
wife, the king caused Neboth to be put to death, and took his vine- 
yar d. God, who punisheth injustice, and worketh out his judg¬ 
ments by secondary causes, caused Ahab to be pierced by an ar¬ 
row in battle; the dogs licked his blood. Jezabel was eaten by 
dogs in the field of Jezrahel; and the house of Achab was made 


[ 21 ] 178 

like unto the house of Jeroboam, the son of Nabat, who made Is¬ 
rael to sin. 

After the United States had, at very great expense, erected Fort 
Delaware on the Pea Patch island, it came to pass that a fire con¬ 
sumed the building. 

It would seem to be prudent to consult the wise men and the ora¬ 
cles, whether Fort Delaware would be unto us a shield against our 
enemies, in times to come, if it w T ere rebuilt, without just compen¬ 
sation made for the possession which was taken without process of 
law r , and without price. 

The example of this case is of exceeding great consequence. It 
reaches beyond the present times to future generations, et nati na- 
turum et qui nascentur ab illis. 

It raises a question as'to the security of private possessions: 
Whether the Executive of the United States may deprive a citizen 
of his possessions by a military order, make himself master of the 
property, and put a heavy loss upon the citizen, unless he shall be 
able to protect his witnesses from death, and in the course of liti¬ 
gation establish a complete, connected, strict, legal paper title to 
the land whereof he hath been so dispossessed? 

u Examples are supposed to justify the most dangerous measures; 
and where they do not, quite exactly, the defect is supplied by 
analogy. One precedent creates another. They soon accumulate 
and constitute law. What yesterday was fact, to-day is doctrine. 

GEORGE M. BIBB. 

[ Hon. R. H. Gillett, 

Solicitor of the Treasury. 


Notes of the argument of John II. Eaton on the Pea Patch Island. 

John H. Eaton who with George M. Bibb, w r as counsel for the 
defendant, commented upon the title of the United States as derived 
from the Stat-e of Delaware through her legislative grant, and ar¬ 
gued that Delaware never had tide, and consequently that the 
United States had none. 

He deraigned the title to Penn from the duke of York, made 
Augu st, 1682, under which feoffment deed Delaware claimed to as¬ 
sert the title. 

England claimed the soil and'territory along the river Delaware 
as first discoverer, but her possession had been interrupted. The 
Swedes occupied the w T esterti border, and to expel them, an ex¬ 
pedition w r as fitted out and the country was taken from them. Im¬ 
mediately thereafter these feoffment deeds, by the duke of York 
w T ere made to William Penn, August, 1682. 

The duke being a subject at the time, his achieved conquest gave 
him no right to the conquered territory. A country discovered, or 
obtained by the arms of the sovereign, belongs exclusively to the 
sovereign, not the subject. The duke of York, though the sover¬ 
eign [afterwards, being a subject at that time of Charles II., ac- 



179 [ 21 ] 

quired no title, and could convey none to Penn; the deed, was not 
merely voidable, but was void absolutely. * 

It is insisted in argument, that, though.no title passed by the 
feoffment, yet there was a covenant of further assurance, and as the 
duke subsequently obtained a grant from the king, thenceforth on 
estoppel was interupted, and on coming to the throne, the duke of 
York (James the 2d,) stood seized to the use of his feoffee Penn. 

That might be true, and yet this question not be affected thereby, 
but he insisted that the King of England could not be placed in 
character of royal trustee, except for the whole people of his realm; 
he could not stand such, in regard to individuals. 

This covenant of further assurance , if good while he remained a 
subject of the realm, and might have been enforced through a court 
of equity, yet when he lost that character and came to the throne, 
the right and the remedy were both gone, and his feoffment title to 
Penn, originally void, not being cured precedently, the entire claim 
was merged in the crown; and not being afterwards re-patented, 
the title remained void. 

B sells lands, which he does not own, and afterwards acquires 
title; he holds in trust for his bargainee, and his ownership may be 
divested. But this only can be affected by asking the interference 
of a court of equity. It is a rule of redress and relief, which does 
not operate 'per se; for awarded by a court of chancery, where all 
the facts can be disclosed, it w r ill not operate at all. In the case 
of Gratz & Barr, 4 Wheat., 222, a specific performance was permit¬ 
ted to be enforced at law, but the rule so asserted by the Supreme 
Court is not of approved consideration with the profession, as is 
shown by the fact, that the opinion thus given has not been fol¬ 
lowed, and bills in chancery are still resorted to, for the purpose of 
enforcing a specific performance. This, though, is quite immaterial, 
since in regard to these feoffment deeds, no resort on either the 
equity or law T side w^as ever attempted against the duke of York, 
wdiereby to conclude him as to his further assurance of title. Be¬ 
coming king, thereafter, the enforcement of the precedent right as 
merged. 

The case in 4th Wheat. w r as different from the present. War¬ 
rants had been issued; a survey had been made, and plats and certi- 
cates w T ere returned; all w r as complete as to title, except the patent, 
which remained to be issued, and thus placed, it w T as agreed that the 
patent should come to the bargainee, or if issued to him, that he 
would stand seized to the use of his bargainee. .Hence there w T as a 
clear equitable title; whereas that of the duke of York to Penn 
was wholly void, and if capable to be enforced, could not be so 
done without the aid of a court of equity, w T hich has never been 
invoked, and which being omitted, after that James became king 
was incapable to be enforced. 

The case of the Dutchy of Lancaster, reported in Plowden, gives 
assurance of this principle. This palatine county, having co-ordin¬ 
ate prerogative rights w T ith the crown, came by descent to Henry 
the VII. But he being at the time on the throne, it would come 
to him not in his individual private character by descent from his 


180 


[ 21 ] 

mother, but in his high corporate character as sovereign. Now, 
Henry was a usurper of the crown; and if time and chance should 
depose him from power and place, forfeiture of the estate of his 
kingly rights gleamed upon his view; which would not be the case, 
if the palatine county could come to him in individual, not in 
kingly right. To attain this desired end, an act of Parliament be¬ 
came necessary and was passed, thus clearly showing that while one 
rule of right enures when the heir apparent is a subject, a different 
rule arises when, by ascending to the throne, his private individual 
rights and character become merged in his kingly capacity. 

Thus was it in the case, being considered, while a subject; further 
assurance, had Penn sought it, might have been enforced through a 
court of equity, but on coming to the throne, the right was merged, 
because incapable to be enforced. 

Since our revolution, all the States have substituted for survey 
the registration of deeds; not so formerly. At the date of these 
feoffments to Penn, livery of seizen was as essential to the validity 
of the conveyed title as is now delivery and registering of a deed. 
Seizen to Penn was given by the attorney appointed for that pur¬ 
pose; and it is curious to observe with what marked particularity 
and precision his trust was pertormed. He made livery of New¬ 
castle fort, by delivery of the key; of the woods, by twiggs; of the 
soil, by some dirt; and of the river, by a porringer of water. 

These particularities so specially made out, go to show that the 
whole affair, and indeed the whole transaction of Penn’s feoffment, 
was a made up, concocted affair. The absence of his • rant by 
Charles the II., from 1684 to this time, more than 150 years, is one 
circumstance to induce distrust and doubt of its correctness. 

The act of union of Pennsylvania and the three lower counties of 
Delaware, entered into in December, 1682, in which these feoffment 
deeds to Penn are set out, is another proof of Penn’s management. 
How could it be, that in December, 1682, the colonial legislature of 
Pennsylvania and Delaware could accurately legislate as to deeds 
made to Penn and render them effectual and binding'? Then there 
was no grant made. New Jersey, whose rights were assailed, was 
not present in their council, to object, or to agree. It may be good 
as between Pennsylvania and Delaware, who were pnsent, and 
acting together, but it can in no wise affect the rights of New Jer¬ 
sey, who was not a party to the arrangement, nor ever privy. And 
what if the king and council gave assent to these legislative enact¬ 
ments, still the answer is, there was no grant and none but the par¬ 
ties in interest could be affected by them, of which New' Jersey was 
not either party or.privy. 

He said the question to be met w T as, whether the island in dispute 
was within the jurisdictional limits of New Jersey or Delaware? 
The latter State had produced a long list of testimony to show that 
Writs and process had been served at the low water of New Jersey; 
but, while he thought the testimony inadmissible, because the court 
records of all such proceedings would better disclose such matters 
of exercised jurisdiction, still the evidence proved nothing, be¬ 
cause it does not appear, from anything offered, that the question 


181 


[21] 

as to this right of exercised jurisdiction on the part of Delaware 
was ever judicially inquired into or made a question of; and hence, 
what is now insisted upon as constituting a right may be said to be 
a matter merely acquiesced in, because it failed to be judicially in- 
qui red of, or pleaded in defence, by those who were made to answer 
by process to the claimed jurisdiction of Delaware. A witness, who 
resided on the Pea Patch, states that he voted at the elections at 
the Red Lion, in Delaware. That, too, establishes nothing—settles 
nothing of right. The question rests upon a higher apex than pro¬ 
cess issued and served, or who has voted. It reposes upon this: 
in what jurisdiction does the island rest! and many and vast as 
have been the documentary titles and papers introduced, into that 
the question resolves itself. 

Yattel, an approved writer in regard to the principles of inter¬ 
national law, (ch. 22,) asserts that, where a navigable river sep¬ 
arates two States, each shall hold, ad medium fili^ the centre of the 
river. The Supreme Court of the United States, in various familiar 
cases, has declared the same thing, except where a patent issued to 
the one excludes it. Here there is no exclusion of this right of 
construction, as a reference to the claimed titles will fully explain. 

It is insisted and argued that the grant to New Jersey is restricted 
to low water mark. Wherefore should this be inferred? In her 
grant, there is nothing to authorize such inference; and it should 
be borne in mind that, at the date of the New Jersey errant, the 
•west side of the Delaware river was in possession of the Swedes 
and Dutch; and hence, is it not to be inferred that Charles the 2d 
intended to exclude his own subjects from a right of navigating the 
Delaware for the benefit of foreign disseizors of his asserted claims? 

The grant to the New Jersey proprietors shows clearly its object, 
establishing, by its very calls, what was intended to be conveyed 
by the king’s patent to the duke of York. Its language is too 
plain to be misunderstood. After prescribing and defining the gen¬ 
eral bounds of the grant, it says: “ running back upon the west 
Delaware bay or river.” 

If the expression in the grant had been, running back to Dela¬ 
ware bay or river, there might be plausibility in the idea argued 
upon that New Jersey should be halted at low -water mark. But 
such is not the employed words of the patent. It is, from Con¬ 
necticut river, “ running back;” where to? “Upon the west Dela¬ 
ware bay or river.” If the words had been, west to Delaware 
river, clearly the grant would have been arrested at the river, and 
necessarily there would have to stop; but its language is altogether 
different: it is, “back upon the west Delaware.” 

Certainly this expression could not intend that the grant to the 
New Jersey proprietors should rest and be confined to low water 
mark; or else, why did it not say, back to the Delaware bay or 
river? for then the matter would have been of easy and clear un¬ 
derstanding; but such are not the words employed: they are, 
“ running back upon the west Delaware bay” &c. 

Now, “running back upon the west Delaware bay,” &c., cannot 
mean running back west to the Delaware , for they are expressions 


182 


[ 21 ] 

of very different import and meaning. The one would stop at the 
river, while to run back u upon the west Delaware bay or river’ 7 
would necessarily cross them. Clearly, in the sentence, the term 
west cannot and does not mean any designation of course, but a 
point of termination where the call is to stop, to wit, at the west 
[bank] of the Delaware, &c. “ Running back” west to the Dela¬ 

ware would have a definite meaning, and the call of the grant would 
be there met and be fulfilled; but running back (so the grant is) 
“upon the west Delaware bay or river” cannot mean to : but beyond , 
the river; and hence is it manifest that the New Jersey grant is 
not restricted to low water mark, but, ex vi termines , extends to 
the opposite, the Delaware side of the river. 

Grants, like treaties and statutes, are to be construed by fair, 
liberal construction; but if there be such doubt resulting that 
nothing satisfactory or definite can be arrived at, the rigid rules of 
grammatical construction may be resorted to. 

Now the final, last call of this grant, affecting the present ques¬ 
tion, is, running back from Connecticut river. Where to? “ Upon 
the west Delaware bay or river. West to the Delaware river would 
confine it there; but that such was not intended is perceived by the 
words, upon the west Delaware river; and that, as the Swedes, for¬ 
eigners, at that time occupied and cleared west of the Delaware 
river, is confirmatory that Charles the 2d, with all his weaknesses, 
intended no such thing. 

Thus the grant of New Jersey covered and engaged all the soil 
east of the Delaware river “running back to the west Delaware 
bay or river;” while, on the Maryland side, was the grant to Lord 
Baltimore, which also called to run to the Delaware river, but not 
to cross it, and hence, in regard to his claim, there was no conflicting 
right with New Jersey. Each could go to the river, and if neither 
could cross, consequently the river would remain a common high¬ 
way, common to both, but belonging to neither, except by the 
principles of international law, which constituted midway the 
stream to be the boundary.—Yattel, ch. 22. 

But, some twenty years after, a feoffment deed, followed by a 
grant, was made to Wm. Penn, in March, 1683. Where was that 
grant to be placed? If the patent to New Jersey stretched along 
the east, and that to Lord Baltimore occupied the west shore of 
the Delaware, both being older by eighteen years or more, then 
clearly there was no unppropriated soil on which this latter grant 
of 1683 to the duke of York could repose; and consequently it 
was void through committed mistake of the sovereign; as, against 
a senior, the junior grant is ever held to have been made in mis¬ 
take, and necessarily is rendered void, from inference. 

It is argued, as against Lord Baltimore’s title that Wm. Penn, 
in 1750, before Lord Hardwicke, obtained a decree in favor of the 
title derived to him under the duke of York’s grant of 1683. Evi¬ 
dently this is a mistake, as the trial of the case shows—1 Vesy, 
sen., Rep. 444. 

From a careful examination of that case, it will be seen that by 
nothing there decided is the present question affected. Lord Bal- 


183 


[ 21 ] 

timore and Penn had covenanted as to a settlement of their boun¬ 
daries, and one of the defences asserted by Baltimore was that his 
agreement to admit the title of Penn rested on no consideration, 
and therefore was not binding. Yet Lord Hardwicke held that the 
settlement of a provincial boundary, having for its object peace 
and quiet, was a good consideration. 

But in regard to Penn’s feoffment deed, made when the feoffor 
had no title, nothing is said confirmatory of it. In fact, no such 
question was presented. The whole inquiry upon that examination 
was under an application by Penn to enforce specific performance 
of a contract entered into with Lord Baltimore, the Maryland grantee. 
The grant to the duke of York, in 1683, was incidentally made 
reference to, but it did not form the gist of the action. The entire 
question before Lord Hardwicke was as to the enforcement of the 
specific performance of a contract between the plaintiff and defen¬ 
dant, in which incidental questions were spoken of, but not decided. 

For example: 

The chancellor says, that while the duke of York remained a 
subject, having obtained a grant of what he had enfeoffed Penn, 
he stood as a trustee; and, being afterwards king, why not then a a 
royal trusteed” His lordship asks the question, but, ex abundencia 
centitla , omits to answer it. He might have answered it on the 
authority of the palatine case referred to of the Duchy of Lancas¬ 
ter, that the king of England has a private and corporate capacity, 
and that rights under the one may be available, while they will be 
•void under the other.— Ploivden’s Rep. 

This case in Plowden was well and ably considered, and the con¬ 
clusion arrived was that the king had a two-fold character—private 
and corporate. In his private, descents might be cast upon him, 
and he would take in private right; but, being king, his sovereign 
character became paramount, and he would take in that character 
only. 

By applying this rule, it is seen that Penn never claimed against 
the duke of York an enforcement of his feoffment title while he 
was a subject; and being therefore king, the right which before 
could be asserted was merged to the crown. 

The trial had between Penn and Lord Baltimore settled nothing 
of right in regard to the grant (of 1683) to the duke of York. The 
grant to Lord Baltimore reached to the Delaware river; and conse¬ 
quently, there being no vacant soil on which to place the grant 
made to the duke of York, it was as though it had never been 
made. Being made by the king in mistake, for there was no land 
applicable to its satisfaction, the grant was void. If, as was the 
case, Penn and Lord Baltimore, by agreement, made an opening 
along the shore of the Delaware, by which the feoffment to Penn 
was admitted to a location, that was not in virtue of anything 
arising on the face of the grant, but resulted from the compact en¬ 
tered into with Lord Baltimore, and could have no extension be¬ 
yond what his grant secured, nor could it operate to the prejudice 
of the New Jersey grant. 

If Penn and Baltimore had never contracted, it is clear that the 


184 


[ 21 ] 

grant of 1683, and feoffment deed of August, 1682, could not have 
found a location, and would hence have been void. By their 
terms the Maryland and New Jersey grants, each calling to run to 
the river, would have authorised each to run to the middle of the 
stream. Such is the assertion of Vattel, ch. 22, and so the Su¬ 
preme Court has in several instances decided, (4, 8, 9 Wheat., p. 
651, 584, 189.) Of course, as neither State by its patent crossed 
the river, it remained a common highway, with the right of juris¬ 
diction ad medium Jili. Thus the matter of title stood, and so it 
would have continued, in regard to these States, resting on their 
original patents. Perceiving this, Mr. Penn procured a contract, 
privately entered into with Lord Baltimore, by which an opening 
along the Delaware river was effected for placing this grant of 
1683, junior to both the others. Thus a location was obtained, 
through private contract, for that which, previously having none, 
was void, but which, being thus secured, could be protected only 
to the extent that the Maryland grant was concerned, and could 
not, by the disarrangement thus made, affect the previously ad¬ 
mitted rights of New Jersey. The latter was not a party to this 
contract, and hence any right possessed by her could not be dis¬ 
turbed by such arrangement. The parties making it only were 
bound by it. 

At the period of which we are speaking, livery and seizen were 
essential to the transfer of real estate. Even under the' king’s 
patent, entry upon the land conveyed (that is, seizen) was essen¬ 
tial to the validity of title. Such was, in those days, the settled 
law. How, then, was it possible that the duke of York could enter 
upon, or William Penn have livery and seizen off, the bed of a nav¬ 
igable river—of an island which did not appear above the tide’s 
surface until nearly a century after the date of the grant? If actual 
delivery (seizen) were necessary, and was never made, and could 
not be, then no title, or right, passed to the grantee or feoffee— 
without such formality, none did pass. See Co. Lit. 42, 49, 190, 
240; D. G. & i?., 50, 51; 3 Bibb Ky. Rep. 63, 64. 

Another inquiry material in the consideration of this question 
arises. Could the king of England, in his prerogative right, grant the 
beds of navigable streams where the tides ebb and flow, and which 
are thus reckoned arms of the sea? These are in trust with the 
king for the benefit of all the subjects of his realm, aifd not to be 
bestowed on individual monopoly. The Supreme Court has thus 
decided in regard to a grant from the New Jersey proprietors—that 
their rights and powers of government could not be extended be¬ 
yond what the king could act upon in England; and the right to 
grant the soil under the water was refused. He cited the case of 
Morton vs. Waddel , 15 Peters. 

A disclaimer of title by Delaware, as derived from any proprie¬ 
tory right or interest was commented on; that early as 1794, the 
legislature of the State had declared her title to proceed from the 
treaty of peace with Great Britain in 1783; and that her right of 
soil and sovereignty was thence derived; thus repudiating and dis¬ 
claiming anything of title or right, derived through the proprie- 


185 


[ 21 ] 

tory interest of William Penn. Now, in defending her sale to the 
United States of this island, which she at no time ever had posses¬ 
sion of, or exercised control over, she shall not be at liberty to 
avoid her voluntary disclaimer of title. By the English doctrine 
of disclaimer, if one be attaint of treason, and to avoid a forfeiture, 
disclaim a right to lands and houses, though he be thereafter ac¬ 
quitted of the imputed crime, the disclaimer will prevent a recov¬ 
ery upon his a r ter assertion of claim. 

Del aware did disclaim, formally, and through her legislature, 
everything of right, as derived through the colonial proprietors. 
From this she cannot escape; she cannot fall back upon a title 
which she has heretofore rejected. 

Delaware has title under proprietor Penn; she denies, disclaims 
it. Then, by the rules of settled law, she cannot unsay this formal 
declaration. By this legislative act, she is estopped to reject what 
she has solemnly declared upon. 

But she says, my title is derived from the treaty of 1783. Be it 
' so; what follows? Each and every State of this Union, then, in 
regard to the treaty of peace, must rest on the same ground; and 
if one State may assert this right, each and every other may do the 
same thing. So, if Delaware may throw off—disclaim everything 
of proprietory right—wherefore shall New Jersey not be admitted 
to the same fellowship; and then it will follow that, if sovereignty 
overshadowed Delaware in !776, or 1783, the same thing pertained 
to New Jersey; and in right thereof, the question remained as be¬ 
fore, that the midway channel of the river was the true boundary 
and separation of territory and jurisdiction. If by the declaration 
of our independence, or by the admissions of the treaty of 1783, 
the State of Delaware become independent and sovereign, so also 
did New Jersey so become; and both sovereignties coming into ex¬ 
istence, and operating at one and the same moment, by international 
rule would place the middle of the river as the boundary line be¬ 
tween them. Delaware did disclaim in 1794. See 2 vol. Revised 
Laws, page 1174. 

Having disclaimed for any asserted title, she must repose on the 
sovereignty resulting to her through the revolution, for she cannot 
escape from the effects of her own legislative act of 1794. 

If one be attaint, and, to get rid of the forfeiture, disclaims title, 
although he be afterwards acquitted, he shall be concluded by his 
plea. Standf. J. C., 186; Story’s pleading, 643; Cooper’s Equity 
Pleader, 310, 311. 

Delaware enters an unqualified declaration, that titles derived 
under proprietors, or pretended proprietors, have no foundation in 
either law or equity. On the authority, then, of the decisions re¬ 
ferred to, a disclaimer of title being entered by the whole people 
of the State, it cannot now be taken back; and hence, the State is 
estopped to assert title, under any proprietory right, derived either 
through the feoffment of Penn, or from his after claim, enforced 
through Lord Baltimore; both were repudiated, as being founded 
neither in law or equity, as the statute declares. 


186 


[ 21 ] 

Mr. Eaton argued that the statute of limitations alone would 
give title, even if the fact were that the island in controversy was 
within the limits and jurisdiction of Delaware. The conveyance by 
the New Jersey proprietors, to the present claimants, was in exact 
conformity to the custom and laws of that State. It was true that 
in 1701 the government rights, conceded by the crown, were given 
back to Queen Ann, the then sovereign of England; but it was also 
true that the proprietor’s right in and to the soil was not surren¬ 
dered; that remained to Lord Carteret and the other proprietors of 
New Jersey—their governmental authority only was yielded to the 
crown. 

This being conceded, it might be argued that thereafter the juris¬ 
diction of New Jersey was restricted to the then existing soil with¬ 
in her limits, and that any alluvial island, arising along her shore, 
would be excluded from her proprietory grant. Be this admitted, 
and it by no means follows that the then colony of Delaware could 
lay claim to it. If any objection could arise, it would be that 
neither grant covered it, and hence was the island still the proper¬ 
ty of the crown; and then, under this assumption, that being near¬ 
est the shore of New Jersey, the right and jurisdiction over it 
would be hers, under the principles of international law and the 
grant of the State in 1831 —Yattel, ch. 22. 

But, apart from every arising argument and consideration in¬ 
volved in the case, there was one final one from which the State of 
Delaware, grantor to the United States, could not escape. 

The conveyance of Delaware to the United States, in 1814, of 
land never occupied, owned or possessed by her, was an act of 
champerty. In view of the city of Newcastle, this New Jersey 
grantee had occupied the island, and built a house there, and from 
April to August had exercised acts of open ownership over it. Not 
a word of complaint during the time was made; even from the year 
1784 he was known to have a grant of it from the proprietors of 
New Jersey. For a period of thirty years following the date of 
this grant, Delaware had set up no claim, nor attempted, in regard 
to it, any acts of ownership. 

Then, in 1813, possession of the island, adverse to Delaware, was 
had under a grant from the New Jersey proprietors, which posses¬ 
sion has continued to the present time—a period of thirty-three 
years. Possession is held to be the best evidence of title, and a 
forcible ouster will not interrupt or toll it; for if such were not 
the law, titles to land would depend not on legal rule, but upon the 
physical strength of parties. 

When the United States in 1814 entered and took possession of 
the island, with her hundred soldiers and fifty laborers, it was a 
disseisin, and the possession thus forcibly acquired was the pre¬ 
sent claimant’s possession, for the statute of limitations will not 
commence to run in favor of a disseisor, no matter what time may 
elapse, until after descent to the heir be cast. While the ancestor, 
the disseisor, lives, his act being tortious, the statute of limitations 
will give no protection to his possession.—1 Salk. 335. 13 Peter’s, 


187 


[ 21 ] 

But it is argued that the United States, in 1839, brought suit in 
the circuit court of Delaware, and recovered a judgment'by default, 
and sued out the court’s writ of habere facias; that thereafter the 
statute was arrested. In that there is nothing of strength what¬ 
ever, and for two obvious reasons. 

1st. It is shown by the record and proof that, in consequence of 
suit brought in the State of New Jersey, a recovery was had, and a 
writ of possession awarded against the United States, who, to avoid 
its service, consented to become tenants at will to the present 
claimants, and signed a covenant to that effect; to bring a posesso- 
ry action under such circumstances, was to place the United States 
in the attitude of both plaintiff and defendant—themselves suing 
themselves. 

2d. A judgment by default fails of any binding effect, where the 
landlord not being vouched, there is reason to infer collusion be¬ 
tween the plaintiff and tenant. Here, by the positive direction 
from the War Department, the tenants had signed and acknow r - 
ledged themselves to be tenants, and what remained of them on the 
island, being in the employ and subject to the orders of the govern¬ 
ment, were sued, and made default. The New Jersey claimants 
aver they had no notice of the suit, and there is no proof going to 
show that they had. 

But waiving all this, still if the possession, in April, 1813, when, 
with thirteen hands, the claimant commenced to fish on this island, 
and erected thereon a house, was a valid adverse possession, then 
to 1839, date of this judgment was twenty-six years, and made a 
full completion of the statute. By the act of Delaware of 1793, 
it is declared: u Henceforth, no person shall make an entry into 
any land, but within twenty years next after his right or title de¬ 
scended or accrued.”— Rev. laws p. 1153. 

On the trial before Judge Baldwin, it was proven that at the 
date of their proprietory grant, £C or shortly afterwards, the grantees 
took possession, and so remained in possession until it was sold to 
Dr. Gale.” The witness being dead, a certified copy of his depo¬ 
sition was offered and refused. It ought to have been recorded, for 
the present controversy is for the same land, and although not be¬ 
tween the same parties eo nomine , yet they are such substantially, 
which the law' authorities hold to be sufficient for the admission of 
such testimony. 

Jj: In the first New Jersey action the United States did not, by 
name, appear on the record, but Belin was the tenant in possession, 
and officer in the engineers corps, charged with the construction 
of the fort. The case w r as defended by the district attorney; ex¬ 
ception at the trial was taken, and the record submitted, by direc¬ 
tion of the government, to Attorney General Butler, to determine 
as to the prosecution of a suit of error. Thus were the United 
States substantially parties then, as they now are. That evidence 
being admitted, would have established a title by il prescription.” 
But the proof being refused and there being no appellate resort 
from this tribunal, submission is the only alternative, 

This proof, he thought, ought to have been admitted, as well 


188 


[ 21 ] 

because he believed the rules of law authorized it, as because the 
United States, a strong and powerful opponent, against an humble 
individual, could not intend to avail themselves, in justification of 
their practised disseisen, of any coarse whereby the justice of the 
title and the equity of the parties might be overlooked; having 
continued their oppression until our witnesses are dead, advantage 
should not be taken of it. The testimony, if admitted, would give 
a title by prescription, which being the case, the authorities assume 
that once had, it could not be lost by any interruption of the pos¬ 
sessor.—Co. Litt., 203—206. 

So. too, entry and seisen of the premises under a grant, is adverse 
possession.—2d Sal., 423. 

Thus adverse possession (seisen) being shown, even admitting the 
island to be in the limits of Delaware, her own statute of limita¬ 
tion will operate as a bar; for it does not require that the posses¬ 
sion should be continuous, but only to be adverse. The act says, 
that, “henceforth, no person shall make entry, but within twenty 
years after the right accrued.” Delaware’s right accrued in 1783, 
for so her legislature has declared; and for twenty years thereafter, 
nor, indeed, for sixty or more, did she “ make entry;” hence the 
right is barred. 

It is alleged that Delaware, being a sovereign State, the statute 
of limitation cannot effect her. While the “ nullum tempus oc- 
curit ” does not run against the sovereign, it is difficult to perceive 
how it can in any wise operate advantageously to Delaware. In 
one of tw 7 o attitudes she must stand. 

In regard to the title of this island, she cannot make claim 
in virtue of any possessed sovereignty. Having expressly declared, 
in her legislative capacity, that she has no title derived to her, 
except through the treaty of 1783, she thereby became separated 
from her prop:ietory right, and took refuge alone under the revo¬ 
lution—the treaty of 1783. Delaware intended to say, what the 
supreme court more than once has declared, that on the 4th of July, 
1776, Del aware, Jersey, also, were sovereign and independent 
States. Then if their respective grants did not control, make it 
otherwise, each was entitled to have and hold jurisdiction to the 
centre of the stream, in w T hich event the permanent title of New 
Jersey would render a resort to the statutes unnecessary. 

Already it is shown that the disclaimer of the legislature spurned 
the idea of a title being derived through the proprietors, that their 
claim was not founded in either law or equity, and that they can¬ 
not now unsay. 

But suppose otherwise, and that reliance may be had on the pro¬ 
prietory right of Penn, then a title so asserted cannot place Dela¬ 
ware in any position different and better than the original grantee, 
Penn and his descendants, could occupy. The statute could be 
pleaded against the heirs of Penn, and thence it follows that 
Delaware, being assignee of the feoffee, she equally will be effected 
by the operation of the statute. Upon either alternative, failure 
as to the title results. Was she sovereign in virtue of the revolu¬ 
tion? So is New Jersey, with the island some two hundred yards 


189 


[ 21 ] 

nearest to her shore. Is her claim derivative through the feoffment 
deed to Penn and after grant to the duke* of York? Then can she 
' have no higher rights than Penn’s descendants, and if the statute 
would operate against them, so also must it operate against Dela¬ 
ware and her barganee, the United States. 

In this particular there is nothing in conflict decided by the su¬ 
preme court, to which reference had been made. In 8 Peters, 252, 
the question as to limitation arose directly, and the court say, “An 
adverse possession of 21 years under a claim of title will bar a 
recovery, though the occupant have no title.” See page 252, 8 
Peters. And, again, same opinion, “after 21 years the bar will be 
complete, if the possession be uninterrupted ,” p. 254. 

In the case of the Pea Patch, it is proven that possession was 
taken and ownership exercised certainly in 1813; not secretly and 
stealthfully, as is often the case with forest lands, but in full view 
of the authorities of Delaware; thus affording evidence that adverse 
possession was claimed and exercised, and no attempt was made to 
call it in question until the disseisin took place, through an armed 
force of the United States, which, as has already been shown, upon 
reason and authority, could not affect the original possession of 1813. 

He denied that a possession to be available should be continuous 
for the whole time. A possession to give impulse and force to the 
statute certainly must be adverse, and to this end it must be an 
open notorious exercise of adverse ownership—an actual posscssio 
pedio , either by cultivation or enclosure. The policy and reason 
of the law is, that some act or thing is necessary to be done, 
wherebv to advertise any opposing claimant, against whom suit 
may be brought for a recovery. 

Thus in Johnson’s New York reports, decisions are to be met 
with where a mere fencing in of lots and grounds caused the stat¬ 
ute to run. Why? Not that the adverse claimant was inr actual, 
but was merely in constructive possession, thereby affording infor¬ 
mation that there was an opposing title, and to enable the party out 
of possession to bring his action to recover it. 12 John., 368. 

So in the case referred to, from 8 Peters, p. 25 f, “the bar will 
be complete after 21 years, if the possession be uninterrupted.” 

The Jersey grantee’s right never was interrupted ; for by the ex¬ 
pression used in the supreme court’s opinion it must be intended a 
legal, not a vi et armis “ interruption,” such as the United States 
thought proper to resort to; for in making such resort, no posses¬ 
sory right was or could be acquired; the possession was still in and 
with the New Jersey claimants, because this high handed act of 
unauthorized power, by the United States, brought about by one 
hundred soldiers and fifty laborers, was a desseisin, which was in¬ 
capable to change the right of property, or possession, and thus 
situated the wrongful, illegal occupancy by the United States, was 
still the possession of the New Jersey claimants, for the reason that 
it was tortiously, not rightfully obtained; the law yields no assent 
to any result improperly and wrongfully occasioned. 

If, by pronounced decisions, the placing of boards around a lot 
in the city is notice of an adverse possession and title, so as to 


190 


[ 21 ] 

cause the statute of limitations to run—the party not living on the 
lot—no reasonable distinction can be drawn between such settled 
cases and the present. In regard to the island, fences and artificial 
boundaries were not called for by the reason or policy of the law. 
It was a little island in the middle of the river; water, on all sides, 
surrounded it; and these were its boundaries, to all intents that 
were definite, as though a board fence encircled it. On this island, 
of small extent, this New Jersey grantee brought his laborers, and 
built a house for their accommodation; the ebb and flow of the 
tide which washed the shore was his fence; and his erected house, 
no matter how humble, was proof to Delaware of an adverse pos¬ 
session and title. 

jj. He said no higher outrage on private right could anywhere be 
met with. It was a fearful contest for a poor and humble citizen 
to be found engaged in strife with the government. In the present 
case he felt the disparity to be great, the odds unequal. Every 
application made to the department for papers and information, cal¬ 
culated to elicit truth in regard to this matter, had been repulsed; 
and nothing had been furnished, when asked for, save through their 
own employed counsel, with instructions, perhaps, given, that 
nothing should be communicated that might militate against the 
claim of the United States. In justice, however, to their counsel, it 
is to be remarked, that throughout a spirit of propriety, justice, 
and frank demeanor had been observed; yet, at the same time, 
everything of information in favor of the New Jersey claimant had 
been cautiously doled out, and never given to the counsel, except 
when it had previously passed the revision of their own counsel. 
He claimed that such a course was highly censurable, and quite 
beneath the character of a just and liberal government towards its 
citizens. 

That the United States have a right to take private property for 
public purposes, was unquestionably true; “but then just compen¬ 
sation shall be made.” If, under this security, they may drive one 
from his possession for thirty-three years, and then give him, as in 
this case, merely a law suit to ascertain if the house he was driven 
from were his, it is quite an insecure reliance, and no defence to 
the wronged and injured citizen. If, under the constitution, prop¬ 
erty may be taken for public purposes, let it not be said that the 
evicted citizen shall tarry thirty-three years, and then, for his re- 
diess, be furnished with a mere expensive law inquiry. This may 
save money to the treasury, but certainly nothing of honor and 
justice to the country; and if the government cannot preserve its 
money and credit at a less sacrifice than this, then better were it 
lost at once. 

Where private property is necessary to be taken for public use, 
a right to do so unquestionably remains with the government; but 
it is denied that this can be done without making just and prompt 
compensation. If the United States can keep the party out of a 
just redress for a third of a century, and, as a last alternative, give 
him as redress an expensive litigation, then is the right not worth 


191 [ 21 ] 

being possessed; it becomes a constitutional right merely in regard 
to the paper on which it is printed, and is worth no more. 

The claimant, with a rightful grant, from 1784, was forcibly 
evicted by the United States, and possession of his property re¬ 
tained. At last suit was brought, and a recovery had. The United 
States agreed to become tenants at will, and so held; yet there¬ 
after would they not yield the possession, though nothing but ten¬ 
ants; and in the end, would agree to nothing but a submission to 
their own chosen arbitration, after their own dictation, as to every¬ 
thing pertaining to the investigation. The whole is matter of 
duress, and while not a word of objection is interposed as to the 
distinguished and respectable person who has been selected for the 
umpirage, much might be urged as to the mode pursued on the part 
of the government. The odds in favor of the United States, con¬ 
tending with an humble citizen, surpasses all reasonable calcula¬ 
tion; not in regard to the purity and high integrity of the umpire, 
but that the means and facilities of eliciting facts and truth are so 
unequal, that right is of difficult attainment. 

He proceeded to examine the various charts of the river which 
had been introduced, going to show that the island was nearest to 
the Jersey shore, and the testimony of the numerous pilots, many 
of whom, for a series of years, had been engaged as such; all of 
wnom (two excepted) concurred in saying that the main channel 
of navigation was on the west or Delaware side, so that whether 
the medium f eli was to be controlled by the main channel, or by the 
actual geographic centre of the stream, the island, by the rule laid 
down in Yattel, belonged to New Jersey. De Barr’s map, made in 
1777, also laid down the main channel on the west side of the 
river. 


Substance of the argument of John M. Clayton , of Delaware , for 
the United States , in the matter of the Pea Patch island , before 
the Hon. John Sergeant; delivered in the hall of American Inde¬ 
pendence , in the city of Philadelphia, on the second and third of 
December , 1847, containing a discussion of the title of the States 
Delaware and New Jersey to the river Delaware and its 
islands. 

[The following is the substance of the argument delivered by Mr. 
Clayton in the hall of Independence, in the city of Philadelphia, 
on Thursday and Friday, the 2d and 3d of December, 1847, before 
the Hon. John Sergeant, arbitrator appointed by the President of 
the United States; and James Humphreys, to decide the title to the 
Pea Patch island. As the decision will involve the jurisdiction of 
the States of Delaware and New Jersey for about 50 square miles 
of the river, and as the object is to settle the title, so as to enable 
the government to commence rebuilding the fortifications which 
were burnt in 1831, the questions discussed are of general public 
interest. The colonial history involved in the debate is interest- 



192 


[ 21 ] 

ing. The Pea Patch is supposed to be the only point in the Dela¬ 
ware at which the city of Philadelphia, and the other towns on the 
river, can be successfully defended against a hostile fleet. In jus¬ 
tice to Mr. C. we state, that the following is but a general abstract 
of his speech, and was furnished to the printer without the aid of 
his notes. It is believed, however, to present correctly the sub¬ 
stance of his argument.] 

Mr. C. rose and said, that he joined with his learned friend, Mr. 
Bibb, in the acknowledgment of the kindness which had been ex¬ 
tended to all the counsel who had been concerned in this trial, by 
the civil authorities of the city, and especially for the honor of be¬ 
ing allowed to conduct the argument of the case in the Hall of 
American Independence. It seemed to be an appropriate place for 
the discussion of the means of defending this noble city, which 
was, in truth, the birth place of American freedom. He tendered 
the hearty thanks of himself and his colleague to the city authori¬ 
ties for the accommodations which had been freely furnished for 
the hearing of the case. Those thanks were also due to the His¬ 
torical and Philosophical Societies, the Athenaeum, and to the Bar 
Association of this city, all of which have kindly furnished us with 
books, documents, and charts necessary for the trial. So that, on 
both sides, we have the benefit of libraries, yielding more informa¬ 
tion on the peculiar subject we have to discuss, than could be found 
in any other city of the Union. Our thanks are also due to gen¬ 
tlemen of the legal profession in this city; for the information fur¬ 
nished by two of whom, I feel bound to make some public acknow¬ 
ledgment; I refer to George Washington Smith and John Cadwal- 
lader, esquires. With the aids thus allowed us on both sides, we 
are all satisfied that we have had a fair and full trial. My learned 
friends on the opposite side will now acknowledge that they have 
been supplied with all the papers on the files of any of the offices 
at Washington which could bear upon the subject; and both par¬ 
ties may concede that the testimony in the case is so full as to de¬ 
velop the entire merits of the controversy. 

The counsel who opened for the defence, (Hon. G. M. Bibb,) 
had attacked the government for its past conduct in taking posses¬ 
sion of the Pea Patch island by military force, and expelling Dr. 
Gale, in the year 1813. It will by and by appear, when I come to 
comment upon the evidence regarding that matter, that the govern¬ 
ment in fact entered upon the island when Dr. Gale was not in 
possession of it, and when, for aught that appeared to the officers 
who occupied it, no other human being claimed or wished the pos¬ 
session of it. It then appeared to be a worthless mud-flat, or shoal, 
in the Delaware river, that could never repay to any individual the 
expenses of embanking it; and it is in proof that Mr. Pearce and Mr. 
Booth, citizens ol Newcastle, who held a warrant for it from the 
land office in Delaware, in 1794, considering that it would never 
renay them the expenses of embankment., for that reason never laid 
their warrant upon it, or attempted to occupy it. Yet my learned 
friend has indulged his imagination, contrary to the usual kindness 


193 


[ 21 ] 

of his nature, comparing the course of the government towards Dr. 
Oale to the conduct of Ahab in expelling Naboth from his vine¬ 
yard, and predicting such untoward disasters to the government as 
befel the oppressive king of Samaria. He thought the burning of 
Fort Delaware on this island, which occurred in, January, 1831, 
was an act of Providence for the punishment of the oppressor. 
\\ e read that the ancient Naboth refused to sell his vineyard to the 
king for either land or money, because it was the inheritance of 
his lathers; but our modern Naboth, who speculated in the title to 
this island, purchasing it for a consideration nominally of a thou¬ 
sand dollars, and now desiring to sell it for one hundred and fifty 
thousand, shows none of the aflection which his prototype exhibited 
lor the inheritance of his fathers. He has been constantly strug¬ 
gling to sell his vineyard, or Pea Patch, for the last sixteen years, 
and to make a fortune by the sale of it. The vineyard he claims 
will, by and by, appear to be one to which neither he nor his fa¬ 
thers ever had a particle of title; and it already appears, by the 
articles of agreement which appoint the arbitrator, that he has 
made it a sine qua non in the submission, that he should in no 
event keep his vineyard, but that the government should take it at 
a valuation, even should the arbitrator award in his favor. As to 
the predictions and omens of ill, which my friend has adverted to, 
they will hardly frighten the government from its propriety on this 
subject. He is not Elijah, the Tishbite; and we are not in danger 
of mistaking the flourishes of the orator for the vaticinations of the 
prophet. 

Mr. C. then commenced his argument by a general review of the 
positions which had been assumed by the counsel for the claimant 
under the New Jersey title, and the errors into which they had 
fallen. He complimented his learned opponents on the ability 
they had shown in the discussion; but said they had greatly mis¬ 
taken the claim of Delaware, if they supposed that the government 
of the United States, holding under her title, was bound, on this 
occasion, to vindicate any pretension she might set up to the exclu¬ 
sive jurisdiction over the waters of the bay south of the twelve-mile 
circle about the town of Newcastle. He would dismiss all this 
part of the case by stating unhesitatingly his own opinion, that 
each of the coterminous States bordering on the bay was entitled, 
on the settled principles of international law, to hold, adfilum aqua, 
to the thread or middle of the stream; and that, so far, each of 
them holds the subaqueous soil, as well as State jurisdiction, as 
part of the jura regalia acquired by them on the declaration of in¬ 
dependence. The charters of each of these States, below the cir¬ 
cle, extended only to low. water mark on the Delaware bay; and it 
was only by the application of a principle of the law of nations, 
and the effect by construction which the Supreme Court of the 
United States had given to the declaration of independence, that 
the jurisdiction of each, and the title of each to submarine soil, 
were extended to the middle of the bay. 

The question now to be decided was very different. The princi¬ 
pal inquiry here was whether the State of Delaware had not the 

13 


194 


[ 21 ] 

exclusive right to all the Delaware river, with the soil of the river, 
and all the islands in it, contained within the circumference of the 
circle whose centre was in the town of Newcastle, and whose 
radius extended twelve miles from that centre. But before he pro¬ 
ceeded to the discussion of this, the main question in the cause, it 
became necessary for him to reverse the natural order of the argu¬ 
ment, and inquire into the title which the demandant claims under 
the proprietaries and the legislature of New Jersey. His duty was 
that of reply to the arguments of his learned adversaries; and he 
would follow them in the order in which they had discussed the 
subject. The demandant had bound the United States by the arti¬ 
cles of submission to purchase his title at an appraised value, pro¬ 
vided he had the title. It is incumbent on him, therefore, to show 
that he has a good title, before he can rightfully ask the govern¬ 
ment to pay for it. The burthen of proof is upon him, for another 
reason. An exemplified record in evidence proves that the United 
States have recovered the island in controversy by a judgment in 
the fourth judicial circuit, and in the Delaware district; and that 
the government has been for many years in possession, under the 
judgment thus recovered, and an execution upon it. 

I shall maintain, first, that the demandant, Mr. Humphreys, claim¬ 
ing under Dr. Gale, has not the New Jersey title; 2dly, that New 
Jersey had no title either to the Pea Patch island, or to any other 
part of the river, or subaqueous soil, within the limits of the circle. 

First. The demandant has not the New Jersey title. 

He claims, first, under a proprietary grant. He exhibits an an¬ 
cient survey, or paper purporting to be a survey of the Pea Patch 
island, made in the year 1784, for E. & C. Hall, from whom, by 
sundry mesne conveyances, he derives title to himself through Doc¬ 
tor Gale, who had purchased the title of the Halls for five hundred 
or a thousand dollars. This ancient survey recites a proprietary 
warrant of 1743, and another of 1782, authorizing a survey of lands , 
(not of water or subaqueous soil,) to be made any where u in west 
Jersey below the falls of Trenton.” Neither of the warrants is 
produced in evidence, but the survey states that the Halls had pur¬ 
chased 126 acres of the person holding the warrant of 1782, and 
56| acres of the person holding the warrant of 1743; making the 
right of the Halls, under the warrants, to locate 178^ acres of land 
somewhere in West Jersey. The deputy surveyor, who returns this 
survey to the proprietors of west Jersey, certifies that he surveyed,, 
to fill their claim, an island in the Delaware, called the Pea Patch, 
containing, by computation, just 178| acres. We know, from the 
actual measurement by the coast survey, that the island contains 
but 87.60 acres at this day. The testimony in the cause has proved 
that, about the year 1784, the island first appeared above low water, 
not larger than a u man’s hat.” It is quite apparent, therefore, 
that there was no actual survey made by virtue of these fragments 
of warrants. The statement of the surveyor, that the island con¬ 
tained 178J acres of land in 1784, was probably made because the 
fragments of the warrants themselves, when added together, made 
just that number of acres. No course or distance is given, although 


195 


[ 21 ] 

reference is made to two or three points on the Delaware and Jer¬ 
sey shores, which clearly demonstrate that no actual survey was 
ever made. For example, the mile-house on the Newcastle shore 
is, stated to be 2J miles from the island; when we know, by the 
coast survey, that it is about four miles. But, waiving all objec¬ 
tions of this character, and considering the survey, without posses¬ 
sion and in the absence of any patent, to be a good proprietary 
grant in form, I maintain that it was utterly null and void, because, 
at the time of the grant in 1784, the whole island was below the 
flow of the tide, and continued so to be, according to the evidence 
in the cause, until it was embanked by the government, and re¬ 
claimed from the tide, about the y ear 1814-’15, at the expense of pro¬ 
bably not less than $100,000.. The officer of engineers, who first took 
possession of the island for the government, Captain Clark, proves 
that, at the time he entered upon it, with one hundred soldiers and 
forty laborers, to construct the embankment, it was overflowed at 
every full tide, and so continued to be until the government had 
embanked it. The island was, like the shore between high and 
low water mark, bare at low , covered at high water mark. A ques¬ 
tion, then, to be decided by the law books is, was this land the 
property of the proprietors of New Jersey, while it was below 
the flow of the tide? 

To determine this question, we must first ascertain what were 
the rights and powers of the proprietors of New Jersey at the time 
the pretended grant was made. These proprietors incept their titles 
to lands by the royal charter of Charles II., of the 12th March, 1664, 
confirmed by the charter of 1674. During the war with Holland, 
in 1672, the Dutch had captured and taken possession of New 
York, New Jersey, Pennsylvania, and Delaware. The treaty of 
Westminister restored the country to the English, who then held 
it statu quo ante helium . The royal confirmation, in 1674, was mad 4 £. 
to cure any possible defect in the title arising out of the conquest 
of the country by the Dutch. These charters bounded the country 
granted by them to the duke of York, by the western shore c jV s id e 
of the Connecticut river, and “ by the eastern shore or sid e 0 J the 
Delaware bay” The royal letters patent convey the country be¬ 
tween the Delaware and the Connecticut, “ together witl i the river 
called Hudson river, and the lands from the west side Connec¬ 
ticut to the east side of Delaware bay.” On the 23d of J une? 1664, 
James, duke of York, conveyed to Lord Berkley a? JC [ g; r George 
Carteret a part of the premises so granted to him by the king; that 
is to say, “bounded on the east, part by the mair t sea anc j p ar t hy 
Hudson’s river, having upon the west Delawar € ^ ay or r { ver ? an( l 
extending southward to the main ocean, as far ag Cape May, at the 
mouth of Delaware bay, and to the northwa r ^ ag f ar as t he north¬ 
ernmost branch of the said bay or river Delr ^ ware ^ w hich is in forty- 
one degrees and forty minutes of latitude, an( j cr o S sing over thence 
in a straight line to Hudson’s river, in x forty-one degrees of lati¬ 
tude.” The subsequent conveyances the proprietors of Jersey 
all bound her territory on the we r ^ ^ y the j) e l awa re bay and 
river. 


196 


[ 21 ] 

Here Mr. C. quoted the several grants and confirmations of the 
territory of New Jersey by their dates and boundaries; from which 
it appeared that no one grant extended her western limits beyond 
the eastern side of the Delaware bay and river. And he cited an 
act of the legislature of New Jersey of 1709, dividing west Jer¬ 
sey into counties, bounding each of the western counties by the 
bay and river, and expressly limiting the jurisdiction and territory 
of each county u by ” the bay or the river, and u to ” the bay or river 
only. 

These, said Mr. C., continued to be the limits of all these coun¬ 
ties until the year 1822, after the claimant, Dr. Gale, had insti¬ 
tuted a suit in New Jersey to recover the Pea Patch island, when 
the legislature of New Jersey extended the limits of Salem and 
Cumberland counties to the middle of the river. Thus, said he, 
after defining her own limits by her own laws, and bounding her¬ 
self by the river for one hundred and thirteen years, then, and not 
till then, she set up a claim to half the river within the circle, 
which she had never attempted before. See Smith’s History of 
New Jersey, page 497. u Salem county was named by John Fen¬ 
wick, and distinguished by his tenth as a proprietor in 1675. The 
name and jurisdiction settled by a proprietary law, 1694. The 
boundaries were fixed in 1709,” &c., &c. u In 1681, the commis¬ 
sioners for settling and regulation of lands among the proprietors 
of west Jersey, fixed upon certain regulations, the first of whi.ch 
was, that the surveyor should measure the front of the river Dela¬ 
ware , beginning at Assumpink creek, and thence down to Cape 
May.” And the second regulation was, <{ that each and every 
tenth, or ten proprietors, shall have their proportion of front to 
the river Delaware .” Smith, page 131. Cumberland county w r as 
named by Governor Belcher, in respect to the duke of Cumber¬ 
land; it was divided from Salem by act of assembly in 1747, and 
the boundaries fixed. (See vol. 1 of Laws , p. 361; Smithy 497.) 

Mr. C. then called the attention of the arbitrator to repeated ad¬ 
judications deciding that the State of New Jersey had no title, by 
the royal grants, to the Delaware river. He cited the case of Cor- 
field vs. Coryell, decided by Judge Washington, in the circuit court 
held in New Jersey in the year 1823, reported in 4 Washington Re¬ 
ports; and the case of Bennet vs. Boggs, decided by the United States 
circuit court, sitting in New Jersey, in the year 1830, Baldwin, 
justice, presiding, and reported in 1 Baldwin Reports. In both 
these cases the court decides that the title of New Jersey, under 
the royal grant of Charles II., extends only to the Delaware river, 
and does not include any part of it. In 1721 New Jersey and 
Pennsylvania applied to the privy council, in England, to decide 
their respective titles to the Delaware river, bordering on their 
territories. Pennsylvania exhibited her charter, from which it ap¬ 
peared that she also was bounded on the east by the river. The 

” t v council, which had the exclusive jurisdiction over colonial 
ies, referred the question to York and Raymond, the at- 
general and solicitor general of England. These crown 
rs heard counsel, to enable them to decide it; and they gave 


197 


[ 21 ] 

the opinion that neither Pennsylvania nor New Jersey had, by 
virtue of their charters, any title whatever to the river. The 
claim of William Penn, arising out of his deed from the duke of 
York, of the 24th of August, 1682, was not before the crown law¬ 
yers, nor was his deed given in evidence, as appears by the opinion 
of York and Raymond, as published in 1 Chalmers’s Opinion, which 
Mr. C. read. He then adverted to the fact, t.iat not a single de¬ 
cision of any judge in New Jersey had ever been produced to show 
that she ever claimed title to, or jurisdiction in the river, its soil, 
or islands, within the twelve milescircle. No witness in this cause 
had said that she ever exercised any such jurisdiction, or set up 
any such claim before this controversy; and he quoted the evidence 
of thirteen different witnesses, many of them eminent lawyers and 
judges of Delaware, all testifying positively to the exclusive juris¬ 
diction of Delaware, and stating many instances in which her juris¬ 
diction had been exercised up to low water mark on the New 
,, Jersey shore. Vessels and persons, it appeared, had been often 
seized by process from Delaware while on the eastern side of the 
main channel. The settled idea appeared always to have been, 
that her title extended over the whole river and its islands, within 
the twelve miles-circle. 

Mr. C. then cited, and dwelt at great length upon the case of 
Headley’s lessee vs. Anthony, et al., 5 Wheaton Rep., 374. This 
was a decision of the Supreme Court of the United States, pro¬ 
nounced by Marshall, Chief Justice. The principle decided by the 
court in this case is, that “when a river is the boundary between 
two nations or States, if the original property is in neither, and 
there be no convention respecting it, each holds to the middle of 
the stream. But when, as in this case, one State (Virginia) is the 
original proprietor, and grants the territory on one side only, it 
retains the river within its own dominion, and the newly created 
State extends to the river only, and the low water mark is its 
boundary.” Mr. C. applied the decision to the case before him at 
length. * The title to the whole country, including New Jersey and 
Delaware, was originally in the king. He first granted New Jer- 
sey, by the charter of 1664, and made the river her boundary. 
The Suprem-e Court of the United States had in effect decided that 
the king retained the river, and that the boundary of the newly 
created State or colony of New Jersey extended to the river only, 
and the low water mark w~as its boundary. He then cited several 
authorities to show that the king’s grant carries nothing by impli¬ 
cation, because the king is a trustee for the public; and the prin¬ 
ciple regulating the construction of private grants is not applicable 
to public grants, which are always construed strictly against the 
grantees. Davies’ Rep., 154, 157; 7 Connect. Rep., 200; Chitty’s 
Prerog., 392; Plowden, 333, 336. He also referred to Hale’s trea¬ 
tise, Be Jure Maris , in Hargrave’s Law Tracts. The royal grant 
expressly gives the Hudson river. Expressio unius est exclusio 
alterius. Had it been intended to convey the Delaware river it 
would have been mentioned in the patent, as was the river Hudson. 
The grant in the confirmatory charter to Penn and others, west 


198 


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Jersey proprietors, of the use of all u waters leading to or lying 
in the granted premises, for the purposes of navigation, fishing, or 
otherwise,” was a grant not intended to extend the limits of the 
charter, as Judge Washington-has decided, and was only a grant 
of the use of these waters for public, and not for private purposes. 

If this view of her western limits be correct, said Mr. C., it is 
clear that the proprietary claim of New Jersey to this island in the 
river is without foundation. But admit, said he, for the sake of 
argument, that her charter had extended over the whole river, still 
the proprietary grant of 1784 was utterly void, because the grant 
could not operate over the bed or shores of the river, or any land 
where the tide ebbed and flowed, inasmuch as all such subaqueous 
soil was a part of the jura regalia , which belonged to the crown, 
or provincial government of New Jersey, from 1702 to 1776, and 
after the Declaration of Independence to the State alone in her 
sovereign capacity. 

In the year 1702 the proprietors of New Jersey, by deed, surren¬ 
dered all the royalties and powers of government which they had 
derived from the charters of Charles II. to Queen Anne, who 
accepted the surrender; and from that time the proprietaries ceased 
to govern the territory of New Jersey, reserving to themselves only 
what Lord Hale and other writers denominate the jus 'privatum , 
nothing more than the private right to the soil. From 1702 to 
1776 New Jersey was governed, not by the proprietors, but by 
governors appointed by the crown, who, with the provincial legis¬ 
lature, constituted the royal government of that colony. During 
that period the beds of all the navigable rivers within her charter, 
being part of the regalia , were out of the reach and beyond the 
control of the mere proprietors of the soil. The royal government 
alone could grant them away; and even the crown itself, or the 
royal government acting by its authority, could not, in contraven¬ 
tion of the principles established by magna charta, destroy or 
impair the public right, secured to all Englishmen, to the naviga¬ 
tion and piscary of these rivers, and especially secured by these 
charters to the colonists. The Declaration of Independence trans¬ 
ferred all the regalia and powers of government to the State of 
New Jersey, in her sovereign capacity: but the proprietors, after 
the surrender in 1702, held neither the jus regium nor the jus 
publicum; and the beds and shores of navigable rivers below high 
water mark were entirely out of their control. Any grant by them 
of such subaqueous soil was utterly and absolutely void. It is too 
late to deny this law, for the Supreme Court of the LTnited States, 
in the case of Waddell vs. Martin et. al. 3 reported in 16 Peters’ 
Reports, have solemnly decided the whole question. They held a 
proprietary grant for subaqueous soil in the waters of the Raritan 
bay and river to be utterly and absolutely void, and sustained the 
bolding of the defendant in that case, who claimed the submerged 
soil under a grant from the State legislature, on the ground that 
the regalia were in the State, and not in the proprietors. The 
proprietors of New Jersey have ever held the jus privatum , or 
right of private property, in the vacant lands of New' Jersey, 


199 [ 21 ] 

They hold it still; and they hold it under the royal charters, and 
by the boundaries of those charters. It is otherwise in Delaware 
and in Pennsylvania. There the right to all vacant lands is in the 
States respectively. In Delaware, after the revolution broke out, 
the State shut up the land office, and refused to permit, under a 
heavy penalty, any more proprietary warrants to be issued for 
vacant land, until 1793, when she opened the land office, and ap¬ 
propriated the vacant lands within her limits to her own benefit. 
By this act, and the act of 1794, while all former proprietary titles 
were carefully protected, the proprietaries themselves were denied 
the right to issue any more grants for vacant lands in Delaware. 
This produced a struggle with the proprietaries, of which it is suf¬ 
ficient to say that the State successfully resisted all their claims; 
and she has ever since retained the right to the vacant lands within 
her limits, as well as all the regalia which she acquired by the 
Declaration of Independence. 

Mr. C. commented at length on the case of Waddell vs. Martin 
et al. He also cited m.any law authorities to show that a shoal in 
a navigable river, submerged at ordinary high water, could be 
granted only by a State in its sovereign capacity, by the exercise 
of its legislative power. He cited 10 Price’s Excheq. Rep., 350, 
378, 372, 369, 401; 6 Johnson’s Rep., 133, Palmer vs. Hicks; 19 
Johnson’s Rep., 175; 1 Domat, lib. 8, sec. 1, art. 1; 10 Peters, 662, 
724, 729, New Orleans vs. U. S.; 8 Greenleaf, 90; 17 Wendell, 571; 
11 Ohio Rep., 142; 3 Kent’s Comm., 427; 6 Mass., 435; 1 Wood¬ 
bury and Minot, 403-’9, 421-’2, 427; 3 Howard; 3 Wheaton. 

Th e case of Waddell vs. Martin et al. is a decision on this iden¬ 
tical character of Charles II. It is not merely a parallel case. 
The Supreme Court of the United States have positively determined 
that the proprietors of New Jersey cannot grant away submarine 
soil; and, consequently, a grant by them of a shoal in the Dela¬ 
ware, called the Pea Patch island, which was submerged in 1784, 
and continued to be submerged at every high tide until 1814, could 
not be the subject of a New Jersey proprietary grant, even admit¬ 
ting that the charter of Ch'arles II. of the 12th of March, 1664, in¬ 
stead of extending to the river, as it really did, had extended across 
the river to the right bank of the Delaware. So much, then, for 
the proprietary title. 

Next, let us look at the title granted to the individual demandant 
of this island by the State of New Jersey. I admit that the legis¬ 
lature, in 1831, by an act, reciting that doubts and difficulties ex¬ 
isted as to the proprietary title of Dr. Gale, who then held, as Mr. 
Humphreys now holds, attempted to cure the defect, and ceded to 
Dr. Gale all the State’s right, title, and jurisdiction in this island. 
If the limits of the State extended no further than low water mark, 
on the left bank of the river, as I have shown, then this act was a 
mere brutum fulmen , no more operative than a similar act of the 
same authority to cede away the city of Philadelphia. But allow¬ 
ing, for the sake of argument merely, that the charter of Charles 
II., and the deed of the duke of York to Berkley and Carteret, 
under which New Jersey derives her title, extended over the whole 


200 


[ 21 ] 

river Delaware, still I say, that even then her act of 1831 was but 
a dead letter. In her sovereign capacity she had no title to the 
vacant lands within her limits. That title was in the proprietors 
only. They held, and since her first settlement ever have held, the 
jus privatum in her vacant soil—the right of private property, sub¬ 
ject, as all such rights are, to certain public rights and the regalia 
of the crown, or of the sovereign State. Therefore, when this 
island was reclaimed by the United States in 1814-’15, and rose 
above the tides of the Delaware, it was no longer a part of the re¬ 
galia, or necessary for navigation or fishing. It became the proper 
subject of appropriation to private uses; and, as it was vacant land, 
at that time none but the proprietors could make a title to it. In 
every view of the case, therefore, the act of the State legislature 
gave no title. The case of Waddell against Martin and others, in 
16 Peters, fully sustains this view, as do the other authorities on 
this subject to which I have referred. My conclusion, therefore, 
is, that the New Jersey title is not in the demandant. Whatever 
the title may be, it is still in the proprietors. I further infer that, 
if he even held their title it would not avail him. 

Mr. C. then entered upon an extended argument to show what 
were the regalia granted by the crown in the letters patent of 
Charles II., of the 12th March, 1664. He held that the colonists, 
under that and all similar charters, were entitled to the rights of 
navigation, of fishing for shell fish, and floating fish, and also to 
the rights of self-defence. The proprietaries, before the surrender 
of the regalia, held these rights as trustees for the public, and he 
held them to be inalienable. After the surrender in 1702, the 
crown of Great Britain (and fhe provincial government of New 
Jersey afterwards) held them in trust for the same uses, and with¬ 
out the power of selling or ceding them away to private individu¬ 
als, until the 4th of July, 1776, when the State of New Jersey as¬ 
sumed all the prerogatives and royalties of the crown as a sove¬ 
reign State, and, in the exercise of her sovereign power as such, dis¬ 
tributed such of them of them as she thought proper among the 
different branches of her government, by her written constitution, 
subject always to the power which she, with her sister States, has 
ceded to the general government by the constitution of the United 
States. 

0 

Mr. C. reverted to the subject of the boundaries of New Jersey 
on the river Delaware, and said that old colonial records, both of 
of New York and Delaware, furnished plenary evidence that the 
duke, after his grant of New Jersey to Berkley and Carteret in 
1664, continued to exercise jurisdiction over the whole of the bay 
and river Delaware, and the whole territory of Delaware. He re¬ 
ferred to several passages in Hazzard’s Pennsylvania Register, 
copied from documents in the possession of the Historical Society, 
and to exemplified records from Delaware, to show that Sir Ed¬ 
ward Andross, the royal governor under the duke of York, granted 
islands in the river, and appointed collectors for the bay and river, 
as well as other officers, and finally substituted Governor Nichols 
commander and governor in his stead, on his return to England. 
This exercise of power on the part of the duke over the bay and 


201 


[ 21 ] 

river, after his own grant to Berkley and Cartenet, Mr. C. urged, 
was inconsistent with the supposition that he had intended to grant 
that bay and river to Berkley and Carteret. It was good cotem- 
poraneous exposition of the grant of New r Jersey, and helped to 
show that Berkley and Carteret, under whom the New Jersey title 
is claimed, had nothing in the river. 

Second. Mr. C. next proceeded to the consideration of the Dela¬ 
ware title to the Pea Patch island, which was ceded to the United 
States by the act of the legislature of the State of Delaware of the 
13th of May, 1813. 

We have (said he) incepted the Delaware title by letters patent 
or royal charter from the king of England, Charles II. to his 
brother, James, duke of York and Albany, &c., dated 22d March, 
1683. As the existence of this title paper has been hitherto de¬ 
nied, we have taken pains to produce one fully exemplied copy of 
it from the Chappell Rolls of chancery in England, inspected in 
the reign of the present queen, Victoria, and three old exemplified 
copies, one of which belongs to the public records of the State of 
Delaware. We have shown another printed copy of the same let¬ 
ters patent among the proceedings of the provincial legislature of 
Pennsylvania; and we have shown the original letters patent , and 
have proved that they were found by Mr. Coates, who was former¬ 
ly agent of the Penns in this country, while on a visit to Stoke 
Pogis, the family residence of the Penns in England, in the charter- 
room there, together with the original charter of Pennsylvania and 
the original deeds of feoffment from the duke of York to William 
Penn, dated 24th of August, 1682. These deeds from the king to 
the duke, and from the duke to Penn, are grants for the three 
lower counties on Delaware, now composing the State of Dela¬ 
ware. We have proved that Mr. Penn (heir and descendant of the 
original proprietary) gave these title papers to Mr. Coates, to be 
brought by him to this country, about ten years ago, for the use of 
his countrymen. Pennsylvania has thus obtained possession of her 
charter, which is now at Harrisburg; while the charter of Dela¬ 
ware, with the deeds of the duke of York, remains in the custody 
of Mr. Morris, the son-in-law of Mr. Coates. To Mr. Smith, a 
member of the historical society, we are indebted for the discovery 
of these papers; and to Mr. Penrose, formerly Solicitor of the 
Treasury, we are indebted for the copy from England. It was 
owing only to the kindness of those who had the custody of these 
important original deeds that we were enabled to produce them on 
this occasion, when the jurisdiction of the State over fifty square 
miles of the great river on her border is called in question. We 
have also shown that this charter from the king to the duke—the 
existence of which has been often denied, both in this country and 
in England—was given in evidence as one of the exhibits of Wil¬ 
liam Penn in his chancery suit against Lord Baltimore, in 1750. 
Lord Hardwicke, in 1 Veazey, sen’r, 450, speaks of this exhibit, 
and its legal effect; and we have the original paper book, or 
breviat, signed by Mr. Penn’s solicitors in that case, one of whom 
was Mr. Murray, afterwards Lord Mansfield. We were furnished 


202 


[ 21 ] 

with this book fflr this occasion by the kindness of Mr. Thomas 
Gilpin. This breviat states the contents of the royal charter from 
the king to the duke, and adds the important fact that Penn, instead 
of the duke, had kept the possession of it. 

With all this evidence before us, we may safely ground ourselves 
on this patent as the inception of our title. Our opponents could 
not prove the royal charter for New Jersey by anything but a 
printed copy in Learning and Spicer’s edition of the laws of that 
State; and they have had to resort to that same authority for every 
other public deed they have produced. We have also produced in 
evidence the original lease, dated 21st August, 1682, for ten thou¬ 
sand years, from the duke of York to William Penn, for the lands 
in Delaware, within the twelve miles circle around Newcastle, and 
also for the river Delaware, and the soil of the said river, and all 
the islands in the said river, lying north of the southernmost part 
of the said circle. This was found among the archives of the State 
of Delaware, with two exemplified copies of the deed of feoffment 
of the duke of York to William Penn for the same lands, river, 
islands, &c., lying north of the southernmost part of said circle. 
This deed was also exhibited in the case of Penn vs. Baltimore. 
My colleague has called your attention to the fact that there is but 
a single difference between the description in the king’s deed and 
that of the duke’s. The king’s deed grants all the town of New¬ 
castle, and fort therein, called Delaware, u lying between New Jer¬ 
sey and Maryland .” The deeds from the duke omit the words, 
“ lying between New Jersey and Maryland.” In other respects, 
the duke’s description of the lands and waters lying within the cir¬ 
cle is identical with the king’s. 

The king’s deed conveys to the duke, his heirs and assigns, all 
the regalia and powers of government, in the very same words by 
which he conveys them in the New Jersey patent of the 12th of 
March, 1664. The duke’s deeds to William Penn convey all these 
regalia and powers of government to him, his heirs and assigns. 
The second deed of feoffment, executed by the duke of York the 
24th of August, 1682, conveys to William Penn, his heirs and as¬ 
signs, all that part of the present State of Delaware lying south of 
the circle, reserving half of the quit-rents to the duke. The 
powers of government are conveyed to Penn by both deeds. 

Mr. C. then proceeded to ascertain the construction of these 
deeds. In the progress of his argument, he held that the king’s 
deed to the duke conveyed, first, the town of Newcastle and the 
fort therein, and the lands lying in the segment of a circle on the 
right bank of the Delaware, the centre of which was in the town 
of Newcastle, (said to be at a certain spot on the horse-dyke near 
the northern border of the present town,) and the radius of which 
circle was twelve miles; for which he cited Lord Hardwicke’s 
opinion in 1 Veazey, sen’r, Penn vs. Baltimore, “that the circle 
w.as one of twelve miles radius.” Secondly, he held that the deed 
conveyed all the islands in the river, and the river itself, with its 
subaqueous soil, lying north of the southernmost part of the circle, 
and not merely that part within the circle itself, but all the river, 


203 


[ 21 ] 

at least as far as the northernmost boundary of Pennsylvania. He 
quoted from cotemporaneous historians to show that the object of 
Penn, in obtaining the grant of the lower counties, and especially 
of the lands within the twelve miles circle, and the river and soil 
of Delaware, was to command the door and entrance to his favorite 
colony of Pennsylvania, including the intended city of Philadelphia. 
His object was to protect that colony from the exactions on its 
commerce to which it might be liable, in case the country on the 
right bank of the river, below Pennsylvania, and the river itself, 
should fall into unfriendly hands. He quoted from the history by 
Ebeling, of Hamburg, translated by Duponceau, to show that the 
u safety and security ” of Pennsylvania was considered by Penn a 
great object in obtaining the grant of the three lower counties on 
the river, as well as the revenue to be acquired from u the hardy 
and laborious population ,” composed chiefly of Swedes and Dutch, 
then residing on the right bank of the bay and river. He argued, 
that Penn’s object was not only the security of the navigation and 
commerce of the river, as necessary to the prosperity of his colony, 
but also the safety and defence of that colony against an invading 
foe. The power of establishing martial law for the suppression of 
insurrection, mutiny, and rebellion, and the power of repulsing and 
expelling all invaders, were expressly conferred upon him by the 
deed, as explained by the subsequent deed from the king. With- 
out the river, he could not erect a fort on an island within it, nor 
plant a chevaux-de-frise, to repel a hostile fleet; for, in his prior 
grant of the colony of Pennsylvania, of 1680, his whole colony was 
bounded on the east by the low water mark on the western side of 
the Delaware river. Lord Baltimore’s was a colony of Catholics; 
Penn’s was a colony of Protestants, Dissenters, and Quakers. 
Penn resisted steadily every effort of Lord Baltimore to extend the 
Catholic colony across the peninsula to the river; and he obtained 
and sustained his grant of the three lower counties, in spite of the 
opposition of some of the most powerful nobles at the English 
court. 

We have given in evidence the authenticated record of the livery 
of seizin when William Penn entered into the possession of the 
three lower counties under his deeds of cession from the duke of 
York. The power of attorney to deliver the possession is to be 
found in the deeds of feoffment. John Moll, the attorney in fact 
of the duke of York, delivered to William Penn, in October, 1682, 
turf, twig, and fowl, soil of the river and a porringer of river 
water; he delivered the key of Fort Casimer, with which, the 
record says, Penn unlocked the door of the fort, went in and 
locked himself in, and then came out and locked himself out. 
The learned counsel on the other side object to this mode of con¬ 
veying the river. Yet the books already cited show that a feoff¬ 
ment is good for lands covered with water, and that the livery 
was properly executed for a navigable river. But suppose the 
deed of feoffment were utterly void, for or on account of a de¬ 
fective livery, the learned gentlemen have not attempted to in¬ 
validate the lease for the same premises under which Penn, on the 


204 


[ 21 ] 


/ 


21st of August, 1682, became the tenant of the duke for ten 
thousand years. But to obviate all objections of this character 
to the mere formality of the deeds of feoffment, we have the letter 
from Sir Edward Andross, the lieutenant governor and deputy of 
the duke, addressed to the magistates at Newcastle, and also to 
those of St. Jones and Iloarkills, dated in November, 1682, ex¬ 
pressly confirming the authority of Penn, reciting the deed of 
feoffment of the duke to him, and exhorting all the magistrates 
and people of the colonies to submit to his authority. This paper, 
which comes from the most ancient records of Delaware, with the 
seal of the royal governor of New York appended, in all things 
confirmed the title of Penn under the duke, so far as the duke 
could confirm it. It thanks the magistrates for their former good 
conduct under the government of the duke, relinquishes all future 
pretensions, and exhorts them and others to submit to and yield 
obedience to the government of William Penn, as the grantee of 
all the title of the duke. And just so far as Sir Edward Andross 
had power, as a royal governor, to make royal confirmation of 
Penn’s title, it gave that confirmation. Probably, said Mr. C., 
the reason why the deeds of feoffment were executed may have 
been, that there was no act of parliament to authorize the record¬ 
ing in England of a lease for years by bargain and sale ; and the 
feoffment was probably preferred as a better mode of conveyance, 
in the judgment of the council and conveyancers who prepared the 
deeds. 

It is true, said Mr. C., that the State of Pennsylvania, in 1785, 
had seen fit to enter into a compact with the State of New Jersey, 
by which each of those States took the islands in the Delaware 
lying nearest to its own shore, above the circular boundary between 
Pennsylvania and Delaware, and by which it was agreed that 
each should exercise concurrent jurisdiction over the river above 
that boundary. If the Pennsylvania title to the river opposite 
to her territory was, by the operation of the deeds of August, 
1682, identical with the title of Delaware within the circle, then 
the title and jurisdiction of New Jersey over the river above the 
circle were derived from the same source, to wit, the deeds of 
1682. New Jersey ean show no other title. How, then, can the 
gentlemen on the other side insist upon the evidences to be found 
upon her statute book that she has exercised jurisdiction over the 
river above* the circle, as evidence tending to overthrow or contra¬ 
vene the Delaware title ? The many acts on the statute book of 
New Jersey regulating the fisheries above the circle, are not incon¬ 
sistent with the claim of Delaware to exclusive jurisdiction within 
the circle, but confirm and strengthen the position now taken in 
behalf ot the Delaware title under the deeds of the duke of York, 
which are the only legitimate source to which New Jersey can 
refer to sustain her own claim under the compact with Pennsylva¬ 
nia. If Pennsylvania had no title to the river, except that de¬ 
rived from the deed of 1682, how can New Jersey claim title 
through the compact with Pennsylvania, except from the source of 
the Pennsylvania title ? 


205 


[ 21 ] 

With the policy of Pennsylvania in making this compact, by 
which she surrendered one-half the river above the circle to New 
Jersey, I have nothing to do. I think it is quite clear, from the 
evidence before us, that there was some mistake about the Pennsyl¬ 
vania title to the river in 1785. The opinion of York and Raymond, 
in 1721, that neither Pennsylvania nor New Jersey had title to the 
river and its soil, by virtue of their respective charters, was doubt¬ 
less well known to those who negotiated for the cession of the 
Pennsylvania title. It may possibly have escaped observation, at 
the time, that this opinion must have been entirely changed by the 
production of the deeds under which Penn acquired his title to the 
three lower counties, and all the river and soil thereof north of the 
southernmost part of the circle. Had Penn’s deeds for the river 
been laid before York and Raymond when they gave this opinion, 
it is quite certain, I think, that they never would have decided as 
they did, that the title to the river and its bed was in the crown. 
In giving this opinion, they expressly say, that no other charters 
were before them but those of Pennsylvania and New Jersey. In¬ 
deed, from other evidence, it appears probable, that at that day the 
deed from the king to the duke of York for the three lower counties 
had been mislaid.—See opinions of Northey and Thompson, in 1717 
—Chalmers ’ Op inions. 

In the progress of this cause, our learned opponents, (Judge Bibb 
and General Eaton,) who have exhibited great zeal in behalf of 
their client, have called in question the opinion of Lord Hardwicke 
on the trial of the case of Penn against Lord Baltimore, 1 Veazey, 
sen’r., 450. In that case the lord high chancellor adverted to the 
fact that the deed from the king of England to the duke of York 
was dated nearly seven months after the date of the deeds of feoff¬ 
ment from the latter to William Penn. Yet he held that fact as not 
invalidating Penn’s title. He intimated that the title might be good 
by way of estoppel, for the.duke was u in a condition to be estop¬ 
ped,” meaning that he was then a subject, not the king of England. 
Whether his subsequent ascension to the throne defeated the estop¬ 
pel, was he said, u a nice consideration.” But he was clear, that, 
although the duke had no title when he made his deed to Penn, 
with covenant for further assurance within seven years in the deed , 
his subsequent acquisition of title from the crown, by the letters 
patent of the 22d of March, 1683, constituted him in chancery a 
• trustee of the premises granted for the benefit of Penn; and he 
clearly intimated his opinion that the* duke continued to be a trustee 
for Penn, although he afterwards became king. The chancellor 
says he was “a trustee, and why not a royal trustee?” To both 
his positions our learned opponents have taken exception. Both 
the o-rounds taken by Lord Hardwicke have been sustained with so 
much learning and ability by my colleague (J. A. Bayard) in the 
opening of the argument, that now, in closing it, I do not feel 
myself called upon to do any thing more than answer so much as 
the counsel on the other side have said in reply to him. On the 
estoppel, they have quoted many authorities to show that the king 
cannot be estopped. My colleague’s argument anticipated this ob- 


206 


[21] 

jection, and answered it by commentaries on the very authorities 
now cited to sustain it. One answer to their argument is sufficient. 
The duke was, on the 22d of March, 1683, as Lord Hardwicke says, 
in a condition to be estopped. Our opponents have cited many au¬ 
thorities in the progress of the trial, (in another branch of the case,) 
to show that the King cannot be a disseizor—that the king cannot 
do wrong, and that the courts will never construe his acts to effect 
a wrong. The duke being estopped as a subject of the crown, and 
Penn being thus seized, under his deeds of feoffment with covenant 
for assurance, and the letters patent from the King, by virtue of 
the estoppel, Penn could not be disseized by the Duke’s ascent to 
the throne. On the second ground taken by Lord Hardwicke, that 
the duke was a trustee, and when the king became a royal trustee, for 
Penn, the matter was considered so clear by our learned opponents 
that they have not attempted to make an answer to it; their only 
reply on that subject being that Lord Baltimore’s patent extended 
to the river, and that Penn could have no title to the river and its 
soil, because he had no title to the territory on its border—a reply 
which is irrelevant to the immediate matter we are discussing, and 
which I shall presently answer. 

If Lord Harwdcke was right, then Penn held the equitable title, 
and the arbitrator is, by the terms of the submission, to decide the 
question u by the rules of law and equity .” Penn, then, held the 
beneficial interest (at least) in all the premises granted by the deeds 
of 1682; and the evidence before us shows that he and his heirs 
continued to hold it as proprietaries and governors of Delaware, 
called the three lower counties, from 1682, when the livery of 
seizin was executed to him under the feoffments, until 1776, when 
these counties met their sister colonies in this consecrated hall, and 
by their delegates, McKean, Rodney, and Read, joined in the de¬ 
claration which made them all independent. But, during this long 
interval of time, from 1682 to 1776, the Penn title was often the 
subject of controversy. Penn was the intimate friend of James, 
duke of York. He was in great favor at court till the English 
revolution in 1688; when his friend, then James II., was driven 
from the throne, and was succeeded by William & Mary. He was 
then excepted out of the act of grace, being suspected to be a 
jacobite; and in 1692 his government over his colonies in America 
was taken away from him, and Benjamin Fletcher was appointed royal 
governor in his stead. Penn being recalled, solicited a restoration 
to his government. Fletcher gave dissatisfaction to the colonists; 
and Penn recovered the royal favor, and was restored to his gov¬ 
ernment in 1694, by letters from Queen Mary, which Mr. C. then 
proceeded to read out of Hazzard’s Pennsylvania Register. These 
letters restore him to the government both of the colony and the 
territories , composed of the three lower counties, with the same 
powers which he held under the letters patent from the king. It 
was a restoration in all things. The queen’s letter to him says, 
<c I appoint you governor, &c., over our colony, &c., of Pennsyl¬ 
vania, with the county of New Castle and the territories, with the 
appurtenances, &c., of which you are the proprietor.” This 


307 


[ 21 ] 

letter from Qeen Mary is the strongest possible recognition and 
confirmation of the Penn title, as it expressly declares him to be 
the proprietor, that is, the owner, absolute and unqualified, of the 
private right of property in the soil. Penn remained in England 
until about 1699, and then returned to the government of his colony, 
of which Delaware was then a part. A full history of the dissen- 
tion between the three lower counties and the colony of Pennsyl¬ 
vania has been laid before the arbitrator. At the earliest period of 
their history, they had been known as u the Hoarkills, otherwise 
called Deal, (now Sussex,) St. James, (now Kent,) and Newcastle.” 
In 1700, they were known by the names of the three lower counties 
of Newcastle, Kent, and Sussex on Delaware, and by that name, 
after 1701, they constituted a separate and distinct colony of Great 
Britain, governed by their own laws, but having the same proprie¬ 
tary and governor with the colony of Pennsylvania. It is true 
that Judge Baldwin, on the trial of this question in New Jersey, 
says they were a part of Pennsylvania till the year 1776; but this 
only proves that the judge, who resided in Pennsylvania, was igno¬ 
rant of an important fact in the history of his own State. The 
lower counties, as appeared by the notes and proceedings of the 
provincial assembly of Pennsylvania, and by the appendix to 
Booth’s edition of the laws of Delaware, separated from Pennsyl¬ 
vania at the commencement of the eighteenth century, Penn agree¬ 
ing that they should have the full benefit of his charter of privi¬ 
leges. They carried home with them all the rights and liberties 
secured by that charter. They acknowledged the Penns as their 
proprietaries and governors; and on the 2d of September, 1775,. 
they established the boundaries between the three counties by an 
act which, in its preamble, recites and affirms the whole Penn title. 

The commencement of the eighteenth century was distinguished 
among the colonists by the surrender to the crown of the royal 
powers of government in New Jersey, and by the separation of 
Delaware from Pennsylvania. At that day the country was greatly 
excited, by contests about the royal powers of government in all 
the colonies, but especially in those of New England. New Jersey 
surrendered those powers of governfnerrt in 1702, as I have stated, 
and continued under a crow r n government from that day until the 
revolution. The ministry of England, excited by the colonial con¬ 
tests of that day, procured the passage of the statute 1st Anne, 
which prohibited the crown from granting charters with royal 
powers within the kingdom. After that day no charter with such 
royal powers appears to have been granted among the colonies; but 
Penn’s continued to be a proprietary and charter government, with 
royal and sovereign powers, subordinate to the crown, and in many 
respects resembling the government of a county palatine in Eng¬ 
land. My colleague has shown how, in the year 1717, a powerful 
nobleman at the English court, the earl of S., then in high favor at 
court, petitioned the king, without success, for a grant of Penn’s 
three lower counties—how the privy council referred the matter to 
the crown lawyers to decide, and they reported that no grant to 
fchfc earl should be made until the king’s title should be first estab- 


208 


[ 21 ] 

lished in chancery. That put an end to the matter. No proceed¬ 
ings in chancery were ever adopted to establish the king’s title, for 
the reason, as we have a right to infer, that no such title could be 
sustained. Yet at that time Mr. Penn was under a lunacy, the 
patent from the king to the duke was mislaid, and the attorney and 
solicitor general gave their opinion, with no other title papers be¬ 
fore them than the deeds from the duke to Penn. 

The crown clearly abandoned its claim. This would be a suffi¬ 
cient answer to any inference of title in the crown arising out of 
an order in council of 1685. That order is before the arbitrator. 
At that time Lord Baltimore contested Penn’s title before the privy 
council. He claimed that his own patent from Charles II. for wild 
and uncultivated land, extended to the Delaware river. The privy 
council decided against his title on the ground that the territory in 
dispute was not wild and uncultivated land, being settled by a 
Christian people, to wit: the Swedes and the Dutch, who, as it ap¬ 
pears by authentic evidence in this cause, were settled on Lewis- 
town creek, then called the Hoarkill or Hoernkill,* in 1629. We 
have given in evidence a record which shows that Egonques, and 
other Indian chiefs, made a grant to Mr. G.odys of lands on the 
Delaware bay, on the first day of June, 1629; and Smith says the 
country was settled by the Swedes and Finns in 1627, while Gov¬ 
ernor Stuyvesant says it was first settled by the Dutch in 1625. 
The country was settled at least forty years before west Jersey. 
Lord Baltimore was, therefore, defeated in his application; and Mr. 
Penn, who appeared in behalf of his majesty, gained all the object 
he had in view in support of his own title, by showing that Lord 
Baltimore’s patent had not taken the title out of the crown, and 
that as against him, Lord Baltimore, his majesty’s claim to the ter¬ 
ritory was still perfect. Penn’s title was not before the privy coun¬ 
cil. It was not necessary for him to show it. It was sufficient, 
for all his purposes, to show that the crown had never granted it 
to Lord Baltimore, who, having petitioned the king on that occa¬ 
sion for a hearing on his title, stood before the privy council 
like a demandant in a w^rit -pf right, or a plaintiff in ejectment, 
bound to show a title, and failed to do it. Penn, being heard be¬ 
fore the council in behalf of the crown, like a respondent in a writ 
of right, or a defendant in an ejectment, folded his arms, and relied 
on the insufficiency of his opponent’s title. The decree was in fa¬ 
vor of his majesty’s claim, and very properly so, because, as against 
Lord Baltimore, his majesty’s claim was good. The king himself 
attended this hearing, and the order was signed by twenty-six privy 
councillors, the first noblemen in the kingdom, and the decree 
%vas made, under a catholic monarch, in favor of a quaker proprie¬ 
tary, against the application of one of the most powerful catholic 
nobles. At that time his majesty’s claim, which was thus adjudged 
good against Lord Baltimore, was, as against Penn, good to this 
extent only; that is to say, he was royal trustee, by the judgment 


•Called Hoernkill, or Hornkill, because it was crooked like a horn. Smith’s History of 
New Jersey, 58. 



209 


[21 ] 

of Lord Hardwicke, and held the legal estate to the three lower 
counties in trust for Penn, who held all the beneficial proprietary 
interest in those territories, except the right to one-half the quit-* 
rents in all the country below the circle. William Penn died the 
5th of July, 1718. In 1732 articles of agreement were entered into 
between the Penns and Lord Baltimore for a division of the penin¬ 
sula between the Delaware and Chesapeake bays. The line was 
run, in pursuance of the articles, by commissioners appointed for 
the purpose; and that line has ever since remained the boundary be¬ 
tween Maryland and Delaware. Before the settlement of the con¬ 
troversy, however, the Penns filed their bill in chancery before 
Lord Hardwicke for the specific performance of these articles of 
agreement. The chancellor decided in favor of the Penns, saving 
the rights of the crown. The decree may be seen, drawn out at 
length, in the last edition of Yeazey, sen’r, vol. 1. The Penns 
could not have sustained their suit without an interest in the terri¬ 
tory; and the decree of Lord Hard wicke, which saved the rights of 
"the crown, gave liberty to either party to move to alter the decree, 
in case the crown should ever disturb the possession. No such 
motion was ever made that we have heard of, and we must infer 
that the crown never did disturb the title. Other articles of agree¬ 
ment were made on the 4th of July, 1760, between Frederick, Lord 
Baltimore, son and heir of the former Lord Baltimore, and the 
Penns, for the specific performance of which another decree was 
made by the chancellor in 1762, by which their boundaries were 
confirmed, as now^run between Maryland and Delaware.. Finally, 
the Penns and Lord Baltimore petitioned his majesty, in 1767, to 
confirm their several holdings according to the line run between 
them, and to ratify u the several articles and enrolled decrees be¬ 
fore mentioned,” which he was graciously pleased to do by his 
order in council of the 11th of January, 1769; and iLua ihe king 
finally confirmed the Penn title forever. All these proceedings are 
fully set out in the recitals of the act of the 2d of September, 1775, 
for fixing the divisional lines or boundaries between the counties 
in Delaware; for which see 1 Del. Laws, appendix, 567. Here the 
State, alsQ, fully acknowledged the Penn title on the very eve of 
her declaration of independence. The legislature which passed the 
act of 2d September, 1775, appointed the delegates who attended 
in this hall, and declared her independence ten months thereafter. 
She thus came into the Union claiming the Penn boundaries; and 
the principle established by the Supreme Court of the United States 
is, that each State, on the declaration of independence, became in¬ 
vested with all the sovereign power within its ancient colonial 
limits. 

In 1776 the State shut up the land office. When about to go into 
the fight, she said there should be no more vacant lands sold within 
her boundaries till 'she came out of it. She came out of the revo¬ 
lutionary struggle exhausted and bleeding. She was impoverished 
and overwhelmed with debt in paying troops for her protection at 
home against the British fleet, which was constantly annoying her 
in the bay, and in supporting her celebrated regiment, which poured 

11 


210 


[ 21 ] 


% 


out its blood like water, in more than thirty battles, in other States 

the confederacy. At that day she was in no condition or temper 
to submit any longer to the claims of a royal favorite or an English 
proprietary; and when she opened the land office again in 1793 and 
in 1794, she appropria ed the vacant lands to her own use; but con¬ 
firmed every title that the old prop)ietaries had ever issued. The 
Penns at first resisted her claim, but finally acquiesced in it. And 
now, after their acquiescence for fifty years in her title, under acts 
of limitation passed by her taking away all rights of entry after 
twenty years’ adverse holding, it would be folly to consume your 
time in maintaining the evident position, which flows irresistibly 
from what I have stated, that her title to the vacant lands within 
her limits is good against the Penns, and consequently good against 
all the world. When she granted this island to the United States, 
on the 27th May, 1813, she had all the regalia of the sovereign, with 
the jus privatum , the private and proprietary title to the vacant 
soil included. The island was vacant land, and the title of the 
United States was therefore perfect. 

I have consumed much time in attempting to maintain the Penn 
title, because I believe it to be the true title; and we are so in¬ 
structed by the concurring testimony of all the professional men in 
Delaware, that the inception of title to land there is by a proprietary 
warrant and survey, whenever it is necessary to trace a Delaware 
title back to its origin. This, they teil us, is the general rule, to 
which there are a few exceptions —where the aborigines have granted 
title, before the extinguishment of the Indian rigiht by others than 
the proprietaries themselves, was prohibited by law; and where 
titles from Lord Baltimore had been made before he was ousted by 
Penn. But I gave notice yesterday to my learned opponents that 
I should make the point, that, whether Penn had the title or not 
from the duke of York, the duke had the title from the king. So 
the title was out of the crown; and the boundaries in the king’s 
patent, which are identical with those in the deeds of feoffment 
from the duke to Penn, are the proper boundaries of Delaware, 
even on the supposition that Penn had not the title. For, suppose 
the deeds from the duke to Penn to be utterly void, still ‘the fact 
appears that the Penns held possession of the country, and gov¬ 
erned it, for nearly one hundred years. They either held under 
their own title, or under that of the duke of York, or by his ac¬ 
quiescence; and they held by the metes and bounds in the king’s 
deed, which have always been the metes and bounds of the colony 
and the State. In this aspect of the case the title is just as clear 
as if the Penn title were indisputable; and our opponents can gain 
nothing by all their elaborate argument against the Penn title, 
while they continue to admit, as they have been constantly com¬ 
pelled to admit, the title out of the crown, and resting in the duke 
of York and his heirs. '* 

Mr. C. next reviewed at length the opinion of Judge Baldwin, 
delivered in the circuit court of the United States, in the case of 
Gale against Behlin and others, published in the printed documents 
of Congress. The judge was a man of great learning; but the 


211 


[ 21 ] 


facts of the case -were not properly before him. Suit had been 
brought in the circuit court for the third judicial circuit and dis¬ 
trict of New Jersey, against the laborers, workmen, and other ser¬ 
vants of the United States on the Pea Patch island. It was 
tried before Judge Baldwin, in 1826 . There was no other 
evidence before the court to sustain the Delaware title, ex¬ 
cept a printed copy of the two deeds of feoffment of the duke of 
York, made in 1682 . No inquiry was made for the kino’s patent 
to the duke that we know of. No counsel acquainted with the 
Delaware title was employed in the cause. Not a single witness 
was examined to sustain that title by any portion of that abundant 
proof by which we are now overwhelmed—I mean the proof of the 
exercise of the exclusive jurisdiction by Delaware over the river 
within the circle. No distinction was made between the jurisdic¬ 
tion within and without the territorial claim of Delaware. Evi- 
, den . ce w fs given, or the fact was assumed, that New Jersey had ex¬ 
ercised jurisdiction in the bay below the circle, or in the river 
above the circle. All this was perfectly consistent with the Dela¬ 
ware title and the Delaware claim; and the learned judge had evi¬ 
dently taken no pains to make himself acquainted with the history 
of either New Jersey or Delaware, or even with the history of his 
own State, as is manifest from his stating that Delaware was a part 
of Pennsylvania more than seventy years after the former became 
an independent colony. He suffered himself to be deceived by the 
statement that Ling Charles IT. had never made a deed for the 
three lower counties to the duke of York. Yet we have here the 
printed volume of the votes and proceedings of the provincial 
legislature of Pennsylvania herself, containing the whole deed 
printed at full length. He cites the opinion of Lord Hardwicke, 
in the case of Penn against Baltimore, and refers to the very volume 


and page where it is to be found; yet, if he had read it, he must 
have seen that the king’s patent to the duke was exhibited in that 


very cause,’and that the most important part of Lord Hardwicke’s 
argument, sustaining the interest of Penn in the subject of the con¬ 
troversy, was predicated on that very deed. His argument, giving 
an erroneous construction and an improper effect to the habendum 
in the deed of the duke of York to Penn, was so entirely crushed 
by my colleague in the opening of this case, that our learned op¬ 
ponents here have not ventured to attempt to sustain the judge in 
this respect. Indeed, they have not ventured to rely upon his 
opinion; sensible of its defects, neither of them has laid the 
slightest stress upon it. That part of the learned judge’s opinion, 
in wTiich he ventures to construe one of the duke’s deeds of feoff¬ 
ment by the language of the other, merely because they were both 
executed between the same parties and pn the same day, though 
for different tracts of territory, is an example of judicial license 
for which our law books furnish no parallel. Our learned op¬ 
ponents have not’ ventured to defend it, or even to excuse it. 

And what are we to say of the judge’s knowledge of the 
geography of the river and the country around the island, the title 
to which was the subject of his decision? He admits that the Del¬ 
aware title may cover the island, if a straight line drawn between 


W 


212 


[ 21 ] 

the points, where the circle cuts the right bank of the river, would 
pass eastward of the island, and that Penn’s deed might cover so 
much of the river, its island and soil, as would be included within 
the segment of the circle westward of that chord. Absurd as is 
that construction of the deed of the duke of York to Penn, yet it 
is evident he did not know that it gave the island to Delaware; and 
he accordingly denied her that which his own construction would 
have givpn her. The line which he describes, as may be seen by 
the chart, passes far eastward of the island; and, if allowed as a 
boundary, would cut off a considerable part of Salem county, and 
include it within the limits of Delaware. All that he says upon the 
subject of prescription and adverse possession is palpably misap¬ 
plied; for it is now evident that, with the single exception of the 
attempt of the claimants to establish a title to this island, there 
never was any possession adverse to that of Delaware on the river 
within the circle. Our learned opponents did not attempt to show 
any exercise of jurisdiction on the part of New Jersey, or any claim 
of ownership of any person under New Jersey, within those limits. 
It is true, that while Mr. Corkrin was under examination, he 
having proved that he lived fifteen years on the island, and that he 
had repeatedly voted in Delaware, having always paid taxes in 
Delaware as a citizen of the State, though he was a Pennsylvanian 
before he removed to the island, and that process from Delaware 
was often served upon persons on the island while he was there, our 
learned opponents ventured to put the question to him, whether no 
process from New Jersey had ever been served on the island. He 
replied, never; and that it never had been attempted but in one 
.single instance. He said a fisherman had broken another’s head in 
the river, between the island and the Jersey shore, and that a con¬ 
stable came from Jersey to the island to arrest him, who said he 
had process; though Mr. Corkrin says that he saw no process but a 
pistol. The fisherman denied the jurisdiction of New Jersey, and 
refused to go with the constable, who had to return with his pistol 
and his process without him; but the fisherman told him that if he 
would go to Delaware and get a regular process from one of her 
courts, he would go with him! The fisherman understood the com¬ 
mon law of the country, and the people there understood no differ¬ 
ent rule. As to the possession, the long continued adverse posses¬ 
sion upon which Judge Baldwin sustains the New Jersey pretension, 
there is not a sc ; ntilla of evidence in the whole case to sustain it, 
but this, namely, that Doctor Gale went on the island in the spring 
of 1813, about the 1st of May; built a fisherman’s shantee of rough 
pine boards, about twelve by fifteen feet, on piles in the mud, co¬ 
vered, not with shingles, but with rough boards, which Judge Sin- 
nickson, a highly respectable gentleman, called as a witness by the 
opposite party, declares could not have cost $100; that Doctor 
Gale fished there during the season, which we know terminated in 
about one month; that he caught few fish, I suppose not more than 
enough to pay him for the shantee; and that he then left the island, 
and his shantee disappeared; whether carried off by him or the tide 
does not appear. Whether this was such a pedis possessio as would 


213 


[ 21 ] 

constitute an adverse holding against the State of Delaware, the ar¬ 
bitrator will judge. The State had no knowledge of it, and people 
who lived within sight of the island, on shore, swear they never 
saw it. It was an insignificant thing which, if noticed, would not 
have been resisted. It proved to have been an unprofitable specu¬ 
lation; and that is the sole reason why the fishermen from New¬ 
castle never attempted any similar enterprise. You mjght as well 
go about to prove title to a whole forest, by showing that you had 
hunted the bear and the panther, or any other animals^er^ natures ,, 
there, as to set up a title to an island under water at high tide, by 
proof that you had, at some time, fished for shad and herring on its 
margin. In this connexion, what becomes of all those lamenta¬ 
tions and jeremiads so eloquently poured forth by my learned friends 
on the opposite side, about the tyranny of the government in send¬ 
ing an armed force to oppose Doctor Galel The evidence is that 
no one ever disturbed him. He fished till he became tired of it, 
and went away; and a year after, when Captain Clark went down 
to take possession of the island for the government, he found it 
overflowed at every full tide, and nothing in possession of it but 
hundreds of thousands of crows. These had been the sole tenants 
of it since it first became habitable by them; and one of the wit¬ 
nesses tells us that the people from the adjacent shores, whose crops 
has been destroyed by these birds, made an unsuccessful attempt 
to drive them off; that they brought many muskets and small arms, 
and even cannon in their boats, with which they besieged them for 
ten days, and then were compelled to retire utterly discomfited. 
The crows retained possession of the island, in spite of them all. 
Neither cannon nor small arms could disposses them, until the 
United States, in 1814, sent Captain Clark, with one hundred sol¬ 
diers and forty laborers, to occupy and embank the island. After 
a long contest, during w r hich, as the captain says, the soldiers took 
advantage of the crows, when blinded by the mists and fogs of the 
river, or by some disease in their eyes, and sold the crow-scalps 
at Newcastle, where they were received in payment of the public 
taxes, the crows abandoned the island, and the flag of the United 
States waved in triumph •ver it. 

[The ludicrous description of the siege of the crows produced 
great merriment in court.] 

Does any one believe that Dr. Gale could have done such deeds 
in arms; that he, single-handed, and without troops or artillery, 
could have reclaimed or even recovered this island from the crows'? 
The doctor’s fishing for about three weeks on the island, in the 
year 1813, appears by the evidence to have been the only act of 
possession by him, or those under whom he claimed, from the be¬ 
ginning of the world down to the period when the government 
took possession of the island. I say nothing of the absurdity of . 
attempting to prescribe for an island, or especially for a shoal be¬ 
neath the flow of the tide. The proof of the case renders it un¬ 
necessary for me to discuss the law of prescription, or its applica¬ 
tion to such an object. In the brief furnished by Mr. Wall to the 
government, investigating this title, it is said that Stuypson’s island 


214 


[ 21 ] 

and Egg island were held under grants from New Jersey. If so, 
the fact was entirely irrelevant. The islands were in the bay near 
the Jersey shore, and outside of the circle. I know nothing of 
either, or of the grant - for them. In Smith’s History of New Jer¬ 
sey, p. 445, it is mentioned that the Indians claim title to u Stuyp- 
son’s island, near Delaware river.” If this be true, we may 
doubt the existence of any State grant for it. And here let me 
enter my protest against any attempts to establish a prescriptive 
right to either lands or waters within the limits of Delaware, by 
showing a trespass on what the law writers call u an unguarded 
possession,” a trespass of which the State had no notice, or which 
was too insignificant to attract attention or resistance. If it could 
be proved that any citizen of New Jersey had built a temporary 
shantee on the little sand flat called Goose island, or even pastured 
a cow there, would it not be perfectly ridiculous to set up an ad¬ 
verse holding within the circle for the State of New Jersey, when 
the p.ople on the opposite shore had either not noticed the fact, 
or, through charity for the poor man, had not driven him away? 

The la.t point in the opinion of Judge Baldwin to which I shall 
advert, is that in which he decides against the title of Delaware, 
on the ground of the mere preamble in her land law of 1794. 
That act, by way of recital, claims title under the treaty of peace 
of 1783, by w T hich the crown of Great Britain relinquished to all 
the States the lands within their limits. I shall not discuss the ef¬ 
fect of that treaty, or of Mr. Jay’s treaty of 1794, upon the prop¬ 
erty of non-resident British subjects. We know that many of the 
States, and even Pennsylvania herself, confiscated the estates of 
such as held property in this country, and at the commencement of 
the revolution, without any treasonable act, took up their resi¬ 
dence in the mother country. Whether the Delaware land law of 
1794, passed before the ratification of the treaty of Mr. Jay was 
exchanged, w r as or was not a violation of the spirit or letter of that 
treaty, might have been a very proper subject for consideration in 
former days, when the Penns asserted their title to the vacant 
lands in Delaware. I do not consider the act as an act of confis¬ 
cation, and it is unnecessary to decide whether it was or was not. 
It was an assertir n of a revolutionary right, but it imputes no act of 
treason. Whether the law was binding on the Penns or not, is no 
question now before the arbitrator. He knows, from the history 
before him, that the Penns have acquiesced in the Delaware claim 
for more than half a century, and that the holding of the State has 
been strictly adverse to the claim of the ancient proprietaries 
during all that period. With this the State of New Jersey has 
nothing to do. Admit, for argument sake, that the Penns have 
been wronged, and how can she hold under them? Has she the 
Penn title? Can she make profit to herself out of an injury don-e 
to the Penns?* And What right has she to look into the domestic 
legislation of Delaware, applicable to lands and persons within the 
sovereignty of the latter, and turn that domestic legislation to her 
own advantage? Judge Baldwin considers the act of 1794 a repu¬ 
diation of the right of the Penns—a disclaimer of the Penn title. 


215 


[ 21 ] 

"y6it is 3pp3.i6nt from tlic whole act that one oi its great objects 
was, to confirm all the land titles in Delaware which had ever been 
lawfully issued, either by. the Penns or the duke of York. The 
learned judge calls the recital in the preamble of this act of Dela¬ 
ware, her repudiation of the old proprietary title. What he means 
by repudiation, our law books do not advise us. If he means any¬ 
thing, it is that the State is estopped to assert the truth by a mere 
preamble in one of her legislative enactments. But no answer has 
been given to the argument of my colleague, that the State of New 
Jersey could not take advantage of such an estoppel, if there were 
any, because she is a stranger to the act; and there can be no legal 
estoppel which is not mutual and reciprocal'. Besides this, the 
books referred to by our opponents show that the recital of a deed, 
or the preamble of a statute, cannot create an estoppel. Yet, 
without reference to any of these considerations, Judge Baldwin 
decided away our whole case, on the trial of Gale vs. Behlen, in 
New Jersey. He held that the effect of the Delaware law of 1794 
was to give to the State of New Jersey, and the claimant under 
her title, a part of the territory of Delaware, which that claimant 
might thus recover as plaintiff in ejectment. The holding of the 
learned judge, therefore, amounted to this, that the State of Dela¬ 
ware, through her act of 1794, had, by way of estoppel, or, as he 
calls it, by u election and repudiation,” ceded away a part of her 
territory to the State of New Jersey. If so a the State of New Jer¬ 
sey must have agreed to accept this portion of territory from Dela¬ 
ware, before she could become entitled to it. There must, there¬ 
fore, have been some compact or agreement between the two States, 
the one to cede away a part of her, territory, and the other to re¬ 
ceive it as part of hers. To all this the reply has been already 
given, that the constitution of the United States expressly forbids 
two or more States to enter into any compact or agreement without 
the consent of Congress; and it is not pretended that any consent 
of Congress has ever been given. This article of the constitution, 
which was intended to protect the States of the Union from indis¬ 
creet concessions by one to the other, cannot be violated either di¬ 
rectly or indirectly. That part of the learned judge’s opinion in 
which he says that Delaware, on coming into the Union, had her 
u election” either to affirm or repudiate the proprietary title, is a 
new doctrine, never heard of before. Pray, sir, who had the right 
to put her upon her election? What principle, or what rule of 
duty, demanded such a thing of her? And if she elected, as he 
thinks she did, to prevent the Penns from selling any more lands 
within her boundaries,-does that disprove the great fact which his¬ 
tory records, and which she has repeatedly asserted on her own 
statute book, that she was one of the colonies of Penn, and held a&. 
such by the metes and bounds in his charter? If the legislature 
of Delaware had asserted, in a thousand preambles, that the Penns, 
in 1794, had no title to the vacant lands in Delaware, the whole of 
them would not have shaken the great fact established by all his¬ 
tory, that William Penn was the owner of the vacant lands in the 
territories comprising the three lower counties. 


216 


[ 21 ] 

There yet remains, said Mr. C., another view of this case; and, 
if I am right in it, the title of the United States is good, although 
the utmost pretensions of New Jersey and our learned opponents, 
which are that her title extends to the middle channel of the river, 
should be sustained. If she holds to the middle of the channel, as 
they maintain she does, where is that channel! The arbitrator, to 
give title to Mr. Humphreys, must decide this question against us, 
in case he thinks the New Jersey title extends to the middle of the 
river. If he thinks her territory stops at low water mark on the 
Jersey shore, there is an end of the matter; and it is not necessary 
for him to decide the question I am about to discuss. Many wit¬ 
nesses have been examined, and much evidence has been produced 
on both sides, to show where the main channel runs. Mr. Fairfax, 
of the coast survey, whose certificates, in answer to questions by 
me propounded to him, through Professor Bache, the superinten¬ 
dent of the survey, are, by consent on both sides, admitted as evi¬ 
dence, states that a line run midway between the shores of the 
river would intersect the island, leaving a part on the Delaware 
and a part on the Jersey side; that the northern part of the island 
is nearest the Delaware, and the southern part nearest the Jersey 
shore; that, of the two channels, into which the river divides itself 
just above the island, one passing on the Delaware the other on the 
Jersey side, the greatest depth of water is in the Jersey channel, 
being forty feet, while the greatest depth in the Delaware channel 
is but tw.enty-five feet; that the average depth of the Jersey chan¬ 
nel is thirty-two feet, and the average depth of the Delaware chan¬ 
nel is twenty-three feet. The Jersey channel is, therefore, nine 
feet deeper than the Delaware channel. Mr. Fairfax also proves 
that the Jersey channel is the widest and the shortest channel. 
The chart of the river, from the coast survey, is before you. Mr. 
Fairfax has not stated the width of the Jersey, as compared with 
the Delaware channel; but, from the survey, it is evident that the 
Jersey channel is twice as wide as the Delaware channel; and the 
inference must be that the volume of water which daily passes on 
the Jersey side of the island is vastly greater than that which daily 
passes on the Delaware side of the island. We" have no legal defi¬ 
nition of the cc main channel” of a river, but I suppose that such a 
channel is that through which the greatest volume of the waters of 
the river is discharged, and that which is nearest to the middle of 
the river. The chart shows that the Jersey channel passes very 
near the centre of the river, and not far from the eastern bank of 
the island; while the Delaware channel passes at the distance of a 
mile from the island, close under the Delaware shore. The bottom 
of the Delaware channel is of soft mud; that of the Jersey chan¬ 
nel, like the Jersey shore, is chiefly of sand. Mr. Fairfax says that 
a vessel drawing more than nineteen feet water cannot pass through 
either channel at low water. If it was not for a partial obstruc¬ 
tion at the northern entrance of the Jersey channel, it is evident, 
from the chart, that a vessel drawing thirty feet of water might 
pass through that. In 1836 the Pennsylvania line-of-battle-ship, 
the largest vessel that ever floated on the waters of the Delaware, 


217 


[ 21 ] 

passed down the Jersey, not the Delaware, channel. Mr. Corkrin, 
who lived on the island for fifteen years, and upon whom, as well 
for his character as from his superior opportunities of observation, 
I entirely rely, says that he has often seen large ships and brigs 
passing through the Jersey ‘ channel, and not unfrequently beating 
through it, while, it is a'dmitted that, as the bottom of the Delaware 
channel is soft, and the channel itself better known, the greater 
number of small craft and common merchantmen usually prefer 
that, as an injury from grounding on mud bottom would be less 
than an injury from grounding on a bottom of sand or gravel. If, 
by the words u main channel,” you mean that through which the 
greatest number of small vessels and common merchant ships have 
heretofore passed, the channel is on the Delaware side, where the 
Chesapeake and Delaware canal draws the small craft, and where 
vessels often stop to procure supplies at Delaware city. But if, by 
the main channel of the river, you mean that through which the 
greatest volume of water is discharged, that which is the deepest, 
and the widest, and the shortest, and that which is the nearest the 
centre of the river, that is the New Jersey channel. Such it is, 
manifestly, from the coast survey; and the coast surveyor, being 
interrogated, expressly says that the Jersey channel is the main 
channel of the Delaware river. It is true that two or three pilots, 
and several common watermen, who have never navigated any¬ 
thing but a small craft in their lives, have told us that they con¬ 
sidered the Delaware the main channel, by which they have meant, 
generally, that it has been more navigated by vessels than the 
other. But they appeared to have been entirely ignorant of the 
depth of water in the eastern channel, and their testimony strongly 
reminds us of the refusal of some of the New York pilots to be¬ 
lieve in the existence of Gedney’s channel, long after the coast 
survey had published its soundings to the world. I am not aware 
that our Delaware pilots, although among the best in the world, 
were acquainted with the existence of Blake’s channel, on the 
western side of the bay, before the coast survey disclosed its course 
and depth. Captain Skellinger, a pilot, acknowledged to be of the 
highest order of merit, has given the most ample testimony on this 
subject; and the arbitrator must have been struck, as I was, by his 
remark that the Pea Patch island was evidently a formation of 
mud from the Delaware shore, and not from the Jersey shore, which 
is chiefly composed of gravel and sand. It has been said that in 
ancient days the depth of water was much less than it is at present, 
and that the Delaware has been constantly gaining for a number of 
years upon the New Jersey bank. That does not alter the relative 
rights of the two States. In such a case, what is lost by one of 
two coterminous States is gained by the other; and if it had been 
proved that the main channel was formerly on the Delaware side, 
but that it had insensibly changed its course and passed through 
the Jersey channel while forming the island, the law of nations 
would, in that case, clearly give all the alluvia and all the islands 
westward of the new channel to the State lying on that side of it. 
Yattel, book 1, ch. 22, secs. 267, 268, 269, 270, 274, 275, and 276. 


218 


[ 21 ] 

The distinction is between alluvion and avulsion. A State loses or 
gains by the former, but not by the latter. Hale, De Jure Maris, 
ch. 6. 

In closing my remarks, said Mr. C., suffer me to say that a de¬ 
cision in this case against the title of the United States under the 
State of Delaware to this island, as it could not be made without 
deciding against the ancient jurisdiction of that State over fifty 
square miles of the river, would injuriously affect and seriously de¬ 
range the views and interests not only of those concerned in the 
navigation of the river, but of the business community in general. 
It has been proved by the testimony, conclusively, that Delaware 
has exercised exclusive jurisdiction over the part of the river within 
the circle as far back as the memory of living man extends. As 
before said, no witness deposes to a single act of jurisdiction by 
New Jersey over this part of the river; nor does it appear that any 
lawyer or judge in that State would give testimony that she was 
entitled to or had exercised such jurisdiction. The venerable Kensy 
Johns, now near ninety years old, of Delaware, formerly chief jus¬ 
tice of the supreme court, and afterwards chancellor of that State, 
who administered justice there in a judicial capacity for thirty- 
eight years, and who, as a professional man, practised in the courts 
of Delaware nearly seventy years ago, whose high character for 
learning and integrity must be well known to the arbitrator, swears 
that he never heard the exclusive jurisdiction of that State over the 
river within the circle questioned by any man, either in or out of 
court, until Dr. Gale set up a claim to this island. And he, and 
all the other professional gentlemen who have been examined, 
swear positively that the State of Delaware has exercised exclusive 
jurisdiction within the circle, and they have never heard her right 
to do so questioned, except in the single instance of these claim¬ 
ants under this Jersey title. Thirteen witnesses, sworn before the 
arbitrator, ail depose to the same state of facts, many of them giv¬ 
ing in evidence repeated acts of jurisdiction by Delaware up to low 
water mark on the Jersey shore, her officers seizing vessels and 
persons, debtors and offenders against the law, in all parts of the 
river within twelve miles of Newcastle, without question of the 
Delaware right. They prove that no governor or other officer in 
Delaware ever doubted the Delaware title. Is there any such proof 
that any governor or other officer in New Jersey ever claimed the 
title to or jurisdiction over this part of the river'? On the contrary, 
it is expressly proved that, in May, 1813, General Bloomfield, for¬ 
mer governor and chancellor of New Jersey, waited on the Legis¬ 
lature of Delaware, then in session at Dover, and solicited the 
grant of this island to the goverment of the United States for the 
protection of New Jersey, as well as Pennsylvania and Delaware; 
that he consulted with the then attorney general of the State of 
Delaware, who was at the time a member of the legislature; that 
he did not doubt the Delaware title; and that he never intimated 
that theie was any claim to the title in New Jersey. If he had 
imagined the title was in New Jersey, would not he have solicited 
a similar grant from the legislature of his own State? If she had 


219 


[ 21 ] 

had any claim, would he have compromitted it by asking the grant 
from Delaware and not from her? Yet, sir, it was upon his appli¬ 
cation that the grant was made. Delaware has been charged with 
cupidity. Delaware did not receive a dollar; she never asked or 
received any compensation for this or any other of the numerous 
grants she has made to the United States on the bay or river. She 
holds herself as a high trustee for the navigation and defence of 
the river within her limits, subject to the rights of the general 
government, as freely conceded by her. She granted this island as 
she had granted the site for the Delaware breakwater; and she 
would scorn to take a dollar from the treasury of the nation for 
any territory of hers which was necessary either for the defence of 
our country or the protection of its commerce. If the decision shall 
be that New Jersey extends to the middle of the river, her juris¬ 
diction must be commensurate with her title. The question then 
will arise, and become the subject of litigation in all future cases, 
where is that filum aqua, or thread of the stream, which is to sep¬ 
arate the jurisdiction of one State from that of the other? At pre¬ 
sent, there is no difficulty in arresting a debtor or criminal in this 
part of the river. Every body knows where to procure the writ 
for the purpose, and every public officer in Delaware knows how 
far he may pursue. But let this jurisdiction be disturbed by an 
adverse decision, let th ejilum aqua be established as the boundary 
between the States, and a writ from New Jersey will not secure 
either an escaping criminal or a debtor. The vessel containing the 
delinquent may pass on the other side of the middle of the stream 
while a boat is approaching with the officers to arrest him. In 
every case where a man is arrested on this part of the river, the 
question will be made, was he on this or that side of the middle of 
the stream, and the evidence in this cause shows how uncertain 
will be the testimony of men on such a subject; for in this case the 
testimony is about equally divided on the question whether the 
Pea Patch is nearer to the Jersey or the Delaware shore. Decide 
this question against Delaware, and she may be in no temper to 
enter into any arrangement or compact, with or without the con¬ 
sent of Congress, providing for the concurrent jurisdiction of both 
States over the whole river. We have reason to think that Penn¬ 
sylvania yielded concurrent jurisdiction over the river above the 
circle under a misapprehension as to her own rights. Delaware is 
not, and never has been, under any such misapprehension. In the 
year 1822, when New Jersey applied to her to appoint commission¬ 
ers to make some agreement about the waters and sub-marine soil 
of the Delaware, she refused; and, so deep is her conviction of her 
own rights in this respect, that I have no reason to suppose she 
would ever consent to extend the jurisdiction of any other State 
within what she has believed to be her own limits by her’ own vol¬ 
untary act. Th e filum aqua would then remain the boundary; and 
the u door and entrance 75 to the commerce of the river, which has 
been hitherto protected by one exclusive jurisdiction, would be 
supplied by two doors or outlets, through one of which justice 
would be always evaded when an attempt should be made to en- 


220 


[ 21 J 

force it at the other. Whether the business men and merchants on 
the shores of the whole river, who have constantly availed them¬ 
selves of this established jurisdiction to recover their debts, and 
even the citizens of New Jersey themselves, would not suffer by 
such a division of the jurisdiction, all men may judge. The circle 
extends, as appears by the draft of it made by the coast surveyor, 
to a point on the river a little below Marcus Hook on the north, 
and to a point between Port Penn and Liston’s tree on the south. 
It embraces this island, the southern part of which, Mr. Fairfax 
says, is 4.98 miles from the spire at Newcastle, a point of the tri¬ 
angulation. The entrance to the Chesapeake and Delaware canal 
is within it; and the arbitrator will readily perceive the great ex¬ 
tent of commercial interests which cannot fail to be affected by 
breaking up a jurisdiction which all understand, and to which all 
have hitherto submitted without a murmur. 

Mr. C. then thanked Mr. Sergeant for the kind and patient hear¬ 
ing with which he had honored him, and resumed his seat. 











221 


[21] 


B ecision of the Hon. John Sergeant , arbitrator . 

The question submitted by the United States on the one side, 
and James Humphrey on the other, is thus stated in the submission: 
u to decide the question of the title to the Pea Patch island, as 
derived by the United States from the State of Delaware, and by 
the said James Humphrey, claiming through the said Henry Gale, 
deceased, from the State of New Jersey. 57 

The importance of the case consists chiefly in this; that it in¬ 
volves the question of the boundary for nearly twenty-five miles, 
between the two States just named. It is true that the settlement 
of that boundary is not submitted, nor to be decided in the arbitra¬ 
tion, New Jersey and Delaware not being parties to the submission, 
- nor having agreed so to submit their rights. But it is also true 
that, in conveying the one to the United States, and the other to 
an individual, the island in controversy, they have necessarily 
communicated to the grantees the right to assert the title respec¬ 
tively conveyed to them, and to dispute the adverse title; and it is 
very manifest that this controversy turns mainly, if not entirely, 
upon the question of the limits and jurisdiction of the respective 
States. If thh Pea Patch island is within the State of New Jersey, 
the title is in Mr. Humphrey. If within the State of Delaware, the 
title is in the United States. 

The consideration and respect due to these States, as members 
of the Union, in whatever may touch their rights and interests, 
seemed to require that as much publicity as possible should be 
given to the proceedings; and an intimation to that effect, was 
promptly acceded to by the city and county of Philadelphia, in 
liberally granting to the arbitration the use, first, of the supreme 
court chamber, and afterwards, of the venerable hall of indepen¬ 
dence. The arbitrator was attended by the counsel of the parties, 
who had laboriously searched out the evidence wherever it could 
be found, and followed its production with an able and learned, as 
well as interesting, discussion on both sides. It is believed that 
nothing has been omitted in either respect; and that there is no 
reason to suppose that anything in the shape of evidence or argu¬ 
ment remains unexplored, which could throw additional light upon 
the subject. It remains for the arbitrator, after careful delibera¬ 
tion, and with the aids just mentioned, having come to a conclu¬ 
sion satisfactory to himself, to make his award. In ordinary cases 
his duty would be performed by simply executing the needful 
paper, and giving it the direction which is required, in order to 
render it, as demanded by the submission, u final and conclusive 
between the United States and the said James Humphrey, claiming 
under the said Henry Gale, deceased. 77 

But the same motives of consideration and respect, already stated, 
for giving the utmost publicity to the proceedings; the nature of 
the controversy; the length of time it has been pending; the names 


222 


[21] 

that have been connected with it, from whom he will feel himself 
bound to differ in his views, or at least to appear to differ; and, he 
must add, the great confidence reposed in him by the parties in 
leaving the matter so long litigated to his sole determination— a 
confidence which forbids him to doubt his ability to decide it, but 
by no means relieves him from an anxious sense of the responsibil¬ 
ity of the task he has, by their invitation, undertaken—all these 
things concur to impose upon him the duty, as it is also his desire, 
to present, in an intelligible and somewhat permanent form, the 
grounds of his decision, for the satisfaction of the parties, and the 
examination of those who may feel any curiosity about the case, 
or any interest in it. He is fully aware that his opinion is of no 
authority whatever, except for the single purpose as to which the 
agreement of the parties has made it conclusive; that is, the ques¬ 
tion of title between them. He will, therefore, proceed to state 
these grounds as briefly as may be consistent with perspicuity. 

The island in controversy, called the Pea Patch, lies in the river 
Delaware, rather less than five miles from Newcastle, in a south¬ 
eastward^ direction. The most satisfactory evidence respecting 
it was given by Wilson M. C. Fairfax, esq., of the United States coast 
survey, being from actual and careful survey and measurement. It 
was in writing, and not under oath, but was received by consent of 
both parties; and there is no reason to doubt its accuracy. Accord¬ 
ing to this witness, the length of the island is 1,083 yards,its aver¬ 
age breadth,461 yards, and its area 87.60 acres. The mid-line of the 
island, at its north extremity, is 2,090 yards from the Delaware 
shore, and 2,130 from the Jersey shore—the mid-line of the south¬ 
ern extremity is 2,130 yards from the Delaware shore, and 1,875 
yards from the Jersey shore. The middle line of the river Dela¬ 
ware, he says, run through the island would throw 21.9 acres on 
the Delaware side, and 65.7 acres to the New Jersey side. Such a 
line, he states, would pass through the island 46 yards northeast of 
the southwest extremity of the wharf at the lower end of the island 
which projects towards the Delaware shore, and 20 yards eastward 
of the middle point of the upper end of the island. With respect 
to the water, the witness says, the main and deepest channel of the 
Delaware river opposite the Pea Patch is on the Jersey side. The 
greatest depth of water in the channel on the Jersey side is 40 feet, 
and on the Delaware side 25 feet. The average depth of water in 
the channel of the Jersey side is 32 feet, and on the Delaware side 
23 feet. But to take the entire channel on either side of the island, 
no vessel drawing more than nineteen feet water, at low water of 
spring tide, can pass through. The Jersey channel is the shortest 
and widest, and both about equally curved. 

W itnesses have been ptoduced to show which is the main chan¬ 
nel of the river, as to which they have differed in opinion. The 
greater part, probably, have thought the western or Delaware chan¬ 
nel to be the main channel. They have stated that the bottom on 
that side is softer a^d safer, as well as better holding ground, than 
on the east, though they state, also, that the eastern channel has 
undergone changes at different periods. Some of them have stated, 


223 


[ 21 ] 


too, and no doubt truly, that the shore on the Jersey side, opposite 
the Pea Patch, has been wearing away considerably for some years 
past. And, finally, some of th<-*m, judging only from sic:ht, have 
asserted the island to be nearer to New Jersey than to Delaware. 
As to this, however, the evidence from survey and measurement 
already referred to, is much more to be relied upon than opinions 
like these. 

In the view to be taken of the case, and with reference to the 
grounds upon which it will be decided, it is not necessary to go 
into the particulars of the testimony just adverted to. The mate¬ 
rial facts, about which there can be no dispute, are these: The 
island is on the river Delaware, with a deep channel on each side; 
is far below- the low-water mark on both sides; is not connected 
with the land either of New- Jersey or Delaware; and is at all times 
of tide surrounded by water. There is a shoal, called the^Bulk- 
head shoal, fiom the northern end, towards the northward and east¬ 
ward, but it is never bare; and is, besides, pierced by a channel of 
such width and depth, that vessels of heavy draught of water can 
pass through it. The only question raised about it, and that not 
at all material, is, whether large-sized vessels can beat through 
it from the western channel to the eastern, or in the opposite 
direction, against a head wind. The fact is, that vessels can pass 
entirely round the island, upon the w-aters of the river, at all times 
of the tide. The island is in the waters of the Delaware. 

It is proper further to state, that this island is of comparatively 
recent formation. Maps and charts, as late as the rAldle of the 
eighteenth century, do not mention it. Kensey Johns, esq , who 
was eighty-eight years and four months old at the time of his ex¬ 
amination, (November 2, 1847,) a witness not more venerable for 
his years than for the high stations he had held, and the uniform 
excellence of his character and conduct through his long life, states 
that he had resided in Newcastle from the year 1780 till that day. 
He then says, u I do Know it (the Pea Patch) and have known it 
since the year 1780. At first it appeared about the size of a man’s 
hat. In 1813, when the United States took possession of it, it had 
o-rown to be a large island. It w-as not worth a cent to a private 
citizen; the expense of banking w T ould have been more than it was 
worth.” The general conclusion seemed to be on both sides that 
it had not made its appearance earlier than 1770, which, in the ar¬ 
gument, seemed to be an agreed time of its beginning to be visible, 
and w-as probably nearly correct. It would seem, with some allow¬ 
ance for what must be measurably hypothetical, to have sprung up 
from-the bottom, in the deep channel of the river, dividing that 
channel into the two channels, whose respective titles to the dig¬ 
nity of the u main channel,” have been so much controverted in 
the evidence and the argument. From other evidence, it appears 
that, until the United States made some embankment, the island 
was nearly, if not entirely covered with w-ater at every tide. 

The main point, however, is that before mentioned, which will 
not be affected by any error in the conjecture just stated. From 
its first appearance, the island has always been where it now is, 


224 


[ 21 ] 

that is to say, in the deep river, below the low water mark, sur¬ 
rounded by navigable water, and separated at all times from the 
land on both sides. 

The description and account thus given of the subject of contro¬ 
versy, are deemed to be sufficient for the present, to introduce and 
render intelligible the several questions to be considered and de¬ 
cided. They are indisputable, it is believed, and stand as facts 
beyond the reach of the conflicts in the evidence as to other mat¬ 
ters, not deemed to be important, and therefore laid aside. 

We are thus brought, after stating what the thing in controversy 
is, enabling us to judge by what kind of title such a thing can be 
claimed and held, to the examination of the case made out by the 
respective parties. And it is proposed to begin with the case of 
Mr. Humphrey, as most conducive to the right understanding of 
the questions to be considered. 

H as Mr. Humphrey made out a title? 

He begins taking the evidence in chronological order, and notin 
the order in which it was introduced, with the copy of the record 
of two warrants from the proprietaries of west New Jersey, one 
dated November 4, 1743, for 600 acres of unappropriated land in 
west New Jersey, the other dated August 7, 1782, for 5,000 acres, 
a return of a survey under them for Edward and Clement Hall, 
October 8, 1784, u of an island in the river Delaware, called the 
Pea Patch, situate in the county of Salem, about one mile west 
from Finn’s point, in Penn’s neck, and is about west of the mouth 
of Salem creek, &c., containing 178 acres of marsh, sand bank, 
and mud fla§L Newcastle distant about 4J miles.” The record 
adds: u November 3, 1784, inspected and approved by the council 
of proprietors, and ordered to be recorded.” 

This record, authenticated as it was, was good evidence by the 
laws of New Jersey, and therefore was good evidence in this arbi¬ 
tration. It was accordingly admitted. 

Many objections were made to the warrants, and especially to 
the survey, which need not be stated. The answer to them all was 
this, that if the proprietaries of west New Jersey were the owners 
of the island, and had power to grant it, it was for them, and for 
them only, where there was no interfering right, to object to irre¬ 
gularities in the warrants or in the surveys under them. By ac¬ 
cepting and approving the return of survey, and ordering it to be 
recorded, they waived all such objections, and no one else could 
make them, unless he had^ a right which was interfered with. The 
survey must, therefore, be taken to be good, and to have vested the 
title in the Messrs. Hall, if the proprietaries had a right to grant. 
From M essrs. Hall, the title, by mesne conveyances, was regularly 
derived to Mr. Humphrey, so as to vest in him all the right they 
had, which, as we have seen, was all the proprietaries could give, 
neither more nor less. 

The question then is, what right had the proprietaries? When 
Judge Baldwin gave his charge to the jury in the case of Gale’s 
lessee vs. Beling, in the circuit court of the United States for the 
district of New Jersey, (which will be more particularly noticed 


225 


[ 21 ] 

hereafter,) the case of Martin vs. Waddell (16 Pet. 367) had not 
been decided by the Supreme Court of the United States, where it 
was brought by writ of error to the circuit court just mentioned, 
upon a judgment there rendered, Judge Baldwin presiding. The 
decision of the Supreme Court was in 1842. Being upon a ques¬ 
tion within the jurisdiction of that high court, it is deemed to be 
of the highest authority in all inferior tribunals, and, of course, in 
this, in point of authority, the most humble of all. The point 
there decided, to say nothing of the learned and satisfactory rea¬ 
soning of the chief justice (Taney) in delivering the opinion of the 
majority of the court, the very point decided is, that after the sur¬ 
render to the crown in 1702, by the proprietors of east New Jersey, 
of the powers of government, they had no right in the navigable 
rivers within the charter limits of New Jersey, nor to the soil un¬ 
der them, and have had none since. In this respect, the west New 
Jersey proprietaries stared upon the same ground precisely. Both 
surrendered the powers of government at the same time, and, it is 
believed, in the same terms. The decision of the Supreme Court 
equally settles the law for both. It follows, that the west New 
Jersey proprietors, at the date of the warrants and survey, and ac¬ 
ceptance of the survey, had no right in the river Delaware, even 
though it had been within the charter limits of New Jersey,(which 
will be hereafter examined,) and could give no right in the island 
to Messrs. Hall. For, upon the survey itself, it appeared that the 
island was u in the river Delaware,” and that it was u about one 
mile” from Finn’s point, the nearest land on the Jersey coast. 

The same point was decided in the same way by the highest ju¬ 
dicial tribunal of the State of New Jersey.—Munday vs. Arnold, 1 
Halsted, 1. * 

Pennington, 391. The first of these cases is said to have been 
upon a location made to try the right. In the other it came up 
incidentally. 

The concurring judgments of the Supreme Court of the United 
States, and of the judges of the highest court of New Jersey, in 
such a matter, certainly do amount to binding authority. In ac¬ 
cepting them as such, however, it is not to be understood that any 
doubt is entertained of the solidity of the grounds upon which they 
were made. It may be deemed presumptuous, perhaps, even to 
suggest that they are approved, where approval is of so little con¬ 
sequence, indeed so entirely valueless, in comparison with the 
proper and intrinsic weight of the judgments of these high courts, 
and especially of the Supreme Court of the United States. It may 
be allowable, nevertheless, to add, in vindication only of the effort 
to fulfil the whole duty confided to the arbitrator, that if the ques¬ 
tion were new, and to be examined without the aid of the great 
light thrown upon it by the opinion of the Supreme Court of the 
United States, having fully and deliberately examined the question, 
he should, upon original grounds, come to the same conclusion that 
he most willingly yields to the rightful authority of the judgment. 
It seems contrary to reason, and against the spirit ot our institu¬ 
tions, that great public rights, in which all have an interest and 

15 


226 


I 21 ] 


concern in common, should be without a public guardianship, dis¬ 
interested enough to regard all with impartiality, and powerful 
enough to protect them in the enjoyment of their privileges. Go¬ 
vernment is the proper trustee, everywhere existing with the con¬ 
sent or allowance of the people, and in our representative repub¬ 
lics by free election, with the power of change. If, in the discharge 
of such trust, portions might be disposed of, so as to diminish the 
common fund, still there would be no contradiction, as is supposed 
of one or more of the grants by the State of New Jersey, for it 
must be presumed that such disposition is itself in some way for 
the common benefit, and on terms the least injurious to the public, 
A private proprietor, on the contrary, looks only, and rightfully 
looks only, to his own advantage. 

The conclusion upon this point is, that the survey was merely 
void, that it gave no title, and that no title can be derived from it, 
the proprietors themselves having no rigl^: in a navigable river, nor 
any power to grant. 

The next evidence of title exhibited and relied upon by Mr. 
Humphrey, is an act of the legislature of the State of New Jersey, 
dated the 24th November, 1831, granting to Henry Gale, his heirs 
and assigns, “ all the right and title of the said State of New Jer¬ 
sey to the said island called the Pea Patch, situate in the river 
Delaware, in the township of Lower Penn’s Neck, in the county of 
Salem and State of New Jersey, as mentioned and described in the 
before mentioned survey,” meaning the survey of 1784. 

This act, it will be seen, was passed about seventeen years after 
the present controversy began, and during the time the United 
States were in actual possession of the island. The counsel of Mr. 
H umphrey, in the course of the argument, objected to the cession 
of the island to the United States by the State of Delaware, on the 
ground that the State was not in possession, but it was adversely 
held and possessed, and therefore could not be lawfully conveyed. 
The same objection applies to New Jersey. Whether such is the 
law of New Jersey or Delaware, is not known. It is believed not 
to be so. But it is not material to inquire into the matter, nor to 
examine particularly the evidence of possession, for a reason which 
seems to be a sufficient answer. Both acts of the respective'legis¬ 
latures, besides operating as grants, being passed wdth all the forms 
and sanctions of the constitution, were also acts of legislation, and, 
no third right intervening, could pro tanto repeal the general law, 
and give the required ability. Such would be their effect. If, 
then, the Pea Patch island w’as within the limits of New Jersey, 
and subject to her jurisdiction, there is no doubt of the sufficiency 
of the grant to pass the title of the State. The same may be said 
of the State of Delaware, whether they had champerty laws or not. 
It remains, too, to be shown that a sovereign State can be affected 
by adverse possession, unless so long continued as to found a pre¬ 
sumption of grant. 

It may be further remarked, that in this act the State of New 
Jersey does not assert a right or title. In the preamble the act 
recites the survey of 1784, the mesne conveyances to Henry Gale, 

* • 7 


227 


[ 21 ] 

and then proceeds as follows: “ and whereas, it hath been suggest¬ 
ed that the State of New Jersey hath some title thereto, and by 
reason thereof doubts have arisen concerning the title of the said 
Henry Gale,” and then goes on to grant “ all the right and title of 
the said State of New Jersey.” This remark, it must be observed, 
does not affect the legal sufficiency of the grant to pass all the right 
of the State, and entitle Mr. Humphrey to claim under it. It is 
good between him and the State of New Jersey, and entitles him 
to vouch in his own behalf all the well founded claims of the State. 
But the grant is not in the ordinary form of a conveyance of land. 
It is only a quit-claim, which one may give to quiet doubts, 
whether he has a right or no right. The value of the fact is only 
as it shows, that as late as 1831, when the island, by great expen¬ 
ditures upon it by the United States government for works of pub¬ 
lic defence, had become an object of general attention and interest, 
the State of New Jersey made no assertion of right. The act, for 
a mere nominal consideration, simply relinquishes whatever right, 
if any, the State may have. And this remark may be further ex¬ 
tended. It is believed that there has been no evidence to show 
that the State of New Jersey ever has claimed the title to be in 
her. It may be admitted that the proprietors of west New Jersey 
did assert a right by the acceptance and approval of the survey. 
But they did so, in their own behalf, adversely to the State, under 
a claim which is now settled to have been unfounded. 

In the recital, however, there is a statement entitled to some at¬ 
tention, in connexion with a part of the charge of his honor, the 
late Judge Baldwin, in the ejectment tried in the circuit court for 
the district of New Jersey. The recital is, that, by virtue of the 
survey, “Edward Hall and Clement Hall became seized and pos¬ 
sessed,” and that, by divers mesne conveyances, Henry Gale “hath 
become seized and possessed.” The natural and the legal import 
of this language is only this, that the constructive legal possession 
of vacant land follows the right, and it must be admitted that, if 
the survey had given the right, he would have been, in this sense, 
in possession. But the proprietors themselves having no right or 
possession, could give none to their warrantee. 

Judo-e Baldwin, in the latter part of his charge, comes to the fol¬ 
lowing conclusion: “ In the year 1784, this island was surveyed for 
Edward and Clement Hall on a west Jersey proprietary warrant, 
under which it was held until their title became vested in the plain¬ 
tiff. From this time, he stood in place of the west Jersey proprie¬ 
tors entitled to all their rights by prescription against the crown, 
against the Penns and the State of New Jersey; and, in his own 
right, by his possession, such as it was, entitled to the benefit of 
any limitation which had commenced or begun running from the 
date of the survey. As there was no adverse possession or claim, 
his legal seizin or possession continued till his dispossession by the 
United States in 1815, a period of 31 years, which would bar the 
ri^ht of entry of any adverse claimant; and, connected with the gen¬ 
eral claim of the proprietaries of New Jersey to the islands in the 
Delaware from 1739, would make the title good by a prescription of 


228 


[ 21 ] 

74 years of quiet enjoyment, adverse to any right under the deeds of 
the duke of York to Wm. Penn.” He then concludes that the title 
under Gale is derived from the proprietors and is good, and, as has 
"been seen, adverse to the State of New Jersey. 

Unnecessary criticism upon the charge of Judge Baldwin, is for¬ 
bidden by the respect due to the memory of a learned and able 
man, who so long filled an eminent judicial station. The several 
legal principles contained in the paragraph just quoted are neither 
affirmed nor disaffirmed. Nor is it required to point out the one 
great error which vitiates the whole of the charge. It has already 
been done authoritatively. The case of Martin vs. Waddell had 
not then been decided. The decision since has established a dif¬ 
ferent doctrine from that of Judge Baldwin, upon full discussion 
and deliberate consideration, and in concurrence with the. judg¬ 
ments of the courts of New Jersey, that, from 1702, the proprietors 
never had any right in navigable rivers, and, as there will be occa¬ 
sion to consider more fully hereafter, the right of the State did not 
come into existence until the 4th of July, 1776. Its origin is thus 
distinctly marked, being connected with the great public event of 
that day, which will never be forgotten, as it was the birthday of 
a nation, and registered with an exactness of which there is proba¬ 
bly no other example in the annals of the world. 

This then leads directly to the inquiry, whether the Delaware 
river was ever within the charter limits of New Jersey,* in that 
part of it where the Pea Patch island has since grown up. If it 
were, the right would have become vested in the crown by the 
surrender of 1702, would have so continued until the 4th July, 
1776, and then would have passed to the State of New Jersey as a 
part of her sovereignty, acquired on that day by severing her con¬ 
nexion with Great Britain, and assuming to herself all the powers 
of government. The derivation would thus have been from the 
crown, though not by grant. To maintain that the part of the 
river in controversy was within the charter limits of New Jersey, 
the counsel for Mr. Humphrey have produced the following deeds 
and papers : Patent, 12th, March 1603-4, from Charles the II., 
king of England, to his brother the duke of York, his heirs, and 
assigns, for a large tract of territory, including what is now the 
State of New Jersey, the last boundary of which (now the west 
boundary of New Jersey) is as follows: “and all the lands from 
the west side of the Connecticut, to the east side of Delaware bay.’ 5 

Lease and release, 23d and 24th June, 1664, the duke of York 
to John, Lord Berkely and Sir George Carteret, reciting the grant 
from the king to the duke of York, grant and convey “all that 
tract of land adjacent to New England, and lying arid being to the 
west of Long island, and Manhitas island, and bounded on the 
east part by the main sea, and part by Hudson’s river, and hath 
upon the west Delaware bay or river.” 

Patent 29, June, 1674, Charles the II. to the duke of New York, 
for New Jersey by the same description as before. Between this 
patent and the former one, New York had surrendered to the 
Dutch, and it is stated that the people of New Jersey sent deputies 


229 


[ 21 ] 

to New \ ork, and swore allegiance to the States General and the 
prince of Orange. In February, 1674, a treaty of peace was 
signed between England and the States General, by which New 
York and New Jersey were restored to the English. This deed is 
supposed to have been made to remove all doubts which might 
arise from these occurrences. 

There is no necessity for tracing the conveyances further. The 
title is regularly declared to the proprietors of east New Jersey 
and west New Jersey, between whom the province was held in 
the portions it had been divided into by a partition theretofore 
made, and by the lines and boundaries then fixed. 

In 1702, the proprietors of New Jersey surrendered to the crown 
the powers of government, and thenceforth were only private pro¬ 
prietors. 

Returning, then, to the question, whether the Delaware river at 
the part of it now in controversy was within the charter limits of 
..New Jersey, there can at this time of day be no question. It was 
not within the grant, and as far as is known, there has never been 
a dissentient opinion. 

In 1721, the question was submitted to the law officers of 
the crown by the commissiomers of trade and plantations. The 
opinion of Robert Raymond, attorney general, and Philip Yorke, 
solicitor general, will be found in the first volume of Chalmers’ 
opinions, p. 59. They say, as follows: u We have perused the 
said clauses,” (in the charters of New Jersey and Pennsylva¬ 
nia,) u and have been attended by the agents of the parties, who 
claim the province of Pennsylvania, and their counsel, who laid 
before us a copy of the letters patent granting the said pro¬ 
vince, and have heard what have been alleged on both sides; 
and, upon consideration of the whole matter, are of opinion that 
no part of Delaware river, or the islands lying therein, are com¬ 
prised within the granting words of the said letters patent, or of 
the said annexed extract of the grant of New Jersey; but we con¬ 
ceive the right to the same still remains in the crown.” The 
opinion seems to have been acquiesced in, for there appears to have 
been no further proceedings before the commissioners of trade and 
plantations, nor before the king in counsel, whom the commission¬ 
ers were sometimes employed to aid in colonial investigations; and 
if it should be suggested that there were no agents present on the 
part of New Jersey, the answer is, the question was one and the 
same as to both, for Pennsylvania was bounded by the Delaware on 
the east, just as New Jersey was on the west. 

Some stress might, perhaps, be laid upon the nature of this opin¬ 
ion, partaking, as it does, of the character of a judicial proceeding, 
and some, too, upon the names of the eminent men by whom it was 
given, and the high stations they afterwards adorned. But this is 
needless. The law of nations furnishes the same rule of decision. 
Here was the crown owning a large territory on both sides of a navi- 
K gable river, (for, at the time of the latest of the patents to the duke 
of York, neither the grant of the three lower counties, nor of Penn¬ 
sylvania, had been issued,) and he makes a conveyance of territory 


230 


[ 21 ] 

on one side of the river, bounding on, or bounded by, the river. Is 
the river, or any part of it, included in the grant? This is the very 
question which came before the Supreme Court of the United States 
in Handlv 5 s lessee vs. Anthony, (5 Wheat.,) in the year 1820. The 
decision of the court was delivered by C. J. Marshall, that the 
grantor retains the river within his own domain, and the grantee 
extends to the river only, and the low water mark is his boundary. 
The same point was decided, ‘in the same way, by the supreme 
court of New Jersey, in Arnold vs. Mundy, (1 Halstead, 1,) in 1821, 
with only this difference of expression, u the grant is to the edge 
of the river only, 55 leaving a doubt whether it is a line shifting with 
the rise and fall of the tide. The same point, as to the limits of 
New Jersey on the Delaware river and bay, namely, that it was 
bounded by the low water mark on the east side, was decided by 
Judge Washington, in Corfield vs. Coryell, (4 Wash. C. C. R., 371,) 
in 1823; by Judge Baldwin, in Bennett vs. Boggs, (1 Bald., 60,) in 
1830; and it was approved by him in the lessee of Gale vs. Beling, 
in 1833-4. It must, therefore, be considered as settled that, by 
her charter limits, the territory of New Jersey extended only to 
the low water mark of the Delaware, river on the east side, and in¬ 
cluded no part of the river. It is, accordingly, so considered. 

The States of Pennsylvania and New Jersey, as has been seen, 
being both bounded by the low water mark on their respective sides, 
and the river itself belonging to the crown, upon the declaration 
of independence, a new state of things arose. The right of the 
crown was extinguished, and the river lay vacant, a boundary be¬ 
tween them. u When, 55 says Chief Justice Marshall, (Handly 5 s les¬ 
see vs. Anthony,) <£ a great river is the boundary between two na¬ 
tions or States, if the original property is in neither, and there be 
no convention respecting it, each holds to the middle of the stream. 55 
The States of Pennsylvania and New Jersey adopted this rule. In 
1783, a compact was made by commissioners mutually chosen, 
which was ratified by acts of their respective legislatures, in 1785. 
By this compact, concurrent jurisdiction upon the water was given 
to both States, with some restrictions not necessary to be detailed; 
some islands were specifically allotted to each State, probably from 
motives of convenience; and it was agreed that the rest should be¬ 
long to the State to which they lay nearest, and that all islands 
which should thereafter be formed in the river, should be governed 
by the same principle. This agreement was limited southerly to 
u where the circular boundary of the State of Delaware toucheth upon 
the same, 55 (Delaware river.) As between Pennsylvania and New 
Jersey, this compact was formed upon great deliberation, and with 
a full knowledge of the subject, as must be believed from the high 
character of the commissioners on both sides, and is in conformity 
with the principles afterwards laid dow T n by the Supreme Court of 
the United States in the case, before cited, of Handly 5 s lessee vs. 
Anthony. 

If, then, that part of the river Delaware lying between the States 
of New Jersey and Delaware, which includes the Pea Patch island, 
was in the crown on the 4th July, 1776, “the original property not 


231 


[ 21 J 

being in either/’ it would, on that day, have become vested in the 
two States. In that case, New Jersey would be entitled to the 
eastern portion of the river, though not within her charter limits, 
succeeding to that extent to the rights of the crown, which had 
been divested by the declaration of independence. Delaware, in 
the same case, would be entitled to the western portion. Both 
would commence their right from that day. How the line would be 
drawn, or whether it would place the island on the side of the one 
State or of the other, it is not material to inquire; for the views to 
be taken renders it unnecessary. 

The question, having already shown that the “original property 55 
was not in New Jersey, is thus reduced to the. single inquiry, 
whether, on the eventful day referred to, the right to that part of the 
river was in the crown of England, or whether the “ original pro¬ 
perty” was not in the province or colony which then became the 
State of Delaw are. The “original property 55 of Delaware, that is, 

* her title previously acquired and continued up to that day, 
becomes, therefore, the subject of examination, and has been ac¬ 
cordingly examined, carefully and deliberately. The evidence, as 
far as necessary, will now be stated. 

The title begins with two deeds of the 24th August, 1682, com* 
monly termed the deeds of feoffment, from James, duke of York, 
to William Penn. The first of these deeds grants and conveys to 
Mr. Penn, his heirs and assigns forever, as follows: “all that the 
town of Newcastle, otherwise called Delaware, and all that tract 
©f land lying within the compass or circle of twelve miles about 
the same, situate lying and being upon the river Delaware, and all 
islands in the said river Delaware, and the said river and soil 
thereof, lying north of the southernmost part of the said circle of 
twelve miles about the same tow T n. 55 The deed then covenants for 
further assurance, and appoints John Moll, esquire, and Ephraim 
Herman, gentleman, his attornies, jointly and severally, to enter 
into and take possession and seizin of the premises, and to deliver 
possession and seizin to Mr. Penn, his heirs and assigns. 

The second of these deeds conveys to Mr. Penn all the territory 
from the south line of the preceding deed, that is, from “ twelve 
miles south of Newcastle, and extending south to Capin Lopin, 55 
meaning Cape Henlopen. In this deed, there is no grant of 
“islands in the said river Delaware, and the said river and 
soil thereof. 55 

These two deeds, it will be perceived, embrace the whole of the 
territory of w’hat were called the “three lower counties, 55 now the 
State of Delaware. 

On the 28th October, 1682, the attornies appointed in the deed& 
of the duke of York made livery of seizin to Mr. Penn of the 
first of the tracts, of which a record is made and is still pre¬ 
served, and is, in all respects, exact and particular. On the 7th 
November, 1682, as also appears of record, livery was made of 
the tract in the second grant to Captain William Markham, Mr. 
Penn’s attorney. The declaration is signed by twelve witnesses^ 
“in the Delaware river, 55 probably on their passage up from below 


. 232 


[21] 

the twelve miles. Of both a record was made, and still remains, 
in all respects, exact and particular. 

There is this remarkable difference in respect to the two grants; 
that, in the first, the livery is stated, besides “twig and turf,” to 
be of “water and fowl of the river Delaware;” in the other, it is of 
“the land, soil and premises” in the indenture mentioned. 

They state, also, that Mr. Penn remained in quiet possession. 
John Moll, the attorney appointed by the duke of York to deliver 
seizin, in his certificate, also recorded, is still more precise. Of 
the livery, under the first deed, he says they “did give and surren¬ 
der to the said W. Penn, esq., actual and peaceable possession of 
the fort at Newcastle, by giving him the key thereof, to lock upon 
himself the door; which being opened by himself again, we did 
deliver also unto him one turf, with a twig upon it, a porringer , 
with river water , and soil , (soyle,) in part of all that was specified 
in the said indenture,” &c. As to the other, he says that a few 
days after they went to the south side of Apoquimining creek, by 
computation beyond the twelve miles, and there made livery 
of seizin of the lower part. The distinction thus made it may be 
necessary hereafter to refer to. 

From a book kept in the government at New York, begun 
in 1682 and ending in 1683, a copy has been produced of an entry, 
or paper, of course made during that period, from the commander 
and council, beginning thus: “The record of the commander and 
council; declaration on Esquire Penn’s grant for Newcastle, 
St. Jones and Whorekills, by the commander and chief, in coun¬ 
cil.” It then proceeds to recite the two deeds from the duke of 
York to Mr. Penn, of the 24th August, 1682, setting out, at large, 
and accurately, the description in each; states the appointment of 
attorneys to deliver free and actual possession, and adds: “as by 
the said indentures here produced, and shown to us, and by us 
well approved and entered in the public records of this province, 
doth and may more at large appear, and we being thereby fully 
satisfied of the said William Penn’s right to the possession and 
enjoyment of the premises.” The paper, which is addressed “to 
the several justices of the peace, magistrates and other officers, at 
Newcastle, Saint Jones, Deale, also Whorekill, at Delaware,” or 
within any of the bounds and limits above mentioned; and then, 
after thanking them for their good service, during the time they had 
remained under his royal highness’s government, dismiss them, 
“expecting no further account than that you readily submit 
and yield all due obedience and conformity to the powers granted 
to the said^ William Penn, in and by the said indentures, in the 
performance of which we wish you all happiness.” 

John Moll, in the certificate before mentioned, after stating the 
livery of seizin already referred to, adds this statement: “Which 
acting of us was fully accepted and well approved by Anthony 
Brockhold, the commander-in-chief, and his council, at New York, 
as appears by their declaration, bearing date the 21st November, 
1682; from which jurisdiction we had our dependence all along, 
ever since the conquest, until we had made the above related deli- 


233 [ 21 ] 

very unto Governor William Penn, by virtue of his royal high* 
ness’s orders and commands.” 

On the 28th October, 1682, as appears from evidence of record, 
sundry inhabitants of the town of Newcastle upon Delaware river, 
having heard the first of the two deeds read, and having seen the 
pos session delivered by the duke of York’s agents, “ whereby we are 
made subjects under the king to the said William Penn,” make a 
solemn promise, in the presence of God, to yield him obedience, 
and to live quietly and peaceably under his government. Soon af¬ 
ter an act of naturalization was passed. 

The objection to these two deeds, however, is, that the duke of 
York himself had at that time no grant for the premises from the 
crown, and therefore had no title to convej. It is certain that no 
such grant has been produced, and it is assumed, as a fact, that no 
formal grant had been made to him by the crown. But, if the ques¬ 
tion were open, there would be grounds for believing that the duke 
.of York was some how empowered to deal with the territory on the 
west side of the Delaware river, and the river itself, as connected 
with the operations he was conducting to protect or recover it from 
the Dutch. Not that being a subject, he could acquire any right for 
himself by conquest, which cannot be pretended, but that in such a 
war, for enabling him to quiet the inhabitants, or strengthening the 
defence of the country, it was not unnatural nor unreasonable to 
suppose that he might be entrusted with a large discretionary power, 
and even with rightsin himself for its better execution, especially con¬ 
sidering the relation he stood in to the king, and that he was himself 
the heir presumptive to the crown. John Moll says, they always 
“had their dependence from‘the jurisdiction of New York,” which 
was the duke of York’s government, and it was by that jurisdiction 
we have seen that the actual transfer of the powers of government 
was made to William Penn, which he began immediately to exercise. 
There is other evidence to the same effect. The duke of York and 
his governors did make grants along the Delaware, and did confirm 
titles derived from the Dutch and the Swedes. There are instances 
of titles beginning with the Swedes, confirmed by the Dutch, 
afterwards confirmed by the duke of York and his officers, and 
always treated with respect. But there is another transaction of 
those times of public notoriety, more important than any of these, not 
only on account of its magnitude, but also for the judicial interpre¬ 
tation it has received. In 11$1, William Penn obtained his charter 
for the province of Pennsylvania, bounded on the east by Dela¬ 
ware river, from twelve miles north of Newcastle town, and on 
the south by a circle drawn twelve miles north of Newcastle. On 
the 21st August, 1682, the duke of York gave him a release of all 
his claim upon the province. In the recital it is stated that he “is 
willing and pleased to confirm and make any further assurance of 
the said tract of land and premises unto the said William Penn and 
his heirs.” This deed has always been deemed a part of William 
Penn’s title ; and, furthermore, it has been held that he took sub¬ 
ject to grants previously made or confirmed by the duke of York’s 
government. The Swedes held a large body of land immediately 


234 


[21] 

below the city of Philadelphia. The titles derived from them are 
still respected. They owned also the land now occupied by the 
city of Philadelphia. William Penn obtained it from them by ex¬ 
changing lands on the Schuylkill. And yet there was no formal 
grant from the crown to the duke of York. 

But it is unnecessary, for a reason that will presently appear, to 
persue this enquiry further. Perhaps, indeed, the duke of York by 
subsequently accepting a patent from the crown, and those deriving 
from him, if they claim under that patent, must be deemed to be con¬ 
cluded by it from setting up any prior title in the duke of York. 

Be that as it may, the important fact deduced from what has 
been stated, and leading to consequences in law which will be more 
fully developed as the history advances, is this: that it was under 
these deeds, by the description and boundaries contained in them, 
and none other, and with the possession and seizin then delivered, 
that the three lower counties became, at least, de facto, a province 
or colony, and acquired a name and identity which they maintained 
thenceforward for a century, less only six years, and then, of their 
own will, exchanged for the higher title of a sovereign and inde¬ 
pendent State. The same community still exists after nearly three 
quarters of a century more, with only such modifications as it has 
chosen to make in the mode of its existence, and as it rightfully 
might make, but still preserving its identity as the same corporate 
body which first had its being in the year 1682. The province was, 
and always continued to be, an unit. 

Immediately after, the freemen began the work of government 
by acts of legislation. The first act (7th December, 1682) was the 
u act of union. 77 In the volume of lhws referred to, this act is 
immediately preceded by the two deeds from the duke of York to 
Mr. Penn, set out at large. The preamble recites the patent for 
Pennsylvania, and the release from the duke of York. It then 
goes on to set forth the two deeds from the duke of York for the 
three lower counties, giving in full, and accurately, the des¬ 
cription in each, and especially in the first, the words, u as also 
the said river of Delaware, and soil thereof, and islands therein; 77 
and states that the freemen of those counties have desired to be 
annexed to Pennsylvania. The enacting part follows, providing 
tor the union, and for the naturalization of such of the inhabitants 
as were foreigners. Then follows sundry other acts of legislation 
in the same year, constituting the body of laws well known by the 
name of u the great law. 77 They profess to be enacted by the 
deputies of the freemen of the province (Pennsylvania) and the 
counties afore, aid (the three lower counties.) The legislature was, 
indeed, constituted of equal numbers from the province and coun¬ 
ties. To understand the whole bearing of this evidence, it must 
now be remembered that these laws were to be transmitted and de¬ 
livered to the privy council in England, and, if disapproved by the 
crown within six months from the delivery, and so declared, were to 
become void; otherwise, to remain and stand in full force, u ac¬ 
cording to the true intent and meaning thereof. 77 The u act of 
union 77 was, of course, submitted to the council, and approved by 


235 


[21] 

the crown. Looking at the recitals and enactments of that act, 
and its preamble, it is impossible to avoid saying that the crown 
assented to them, thus acknowledging the validity and legal ope¬ 
ration of the two deeds from the duke of York, the boundaries de¬ 
fined in them, the possession and right of possession according to 
those boundaries, and the rightful exercise of the powers of gov¬ 
ernment under them. An existing colony was thus acknowledged 
as rightfully created, and lawfully enjoying the powers and privi¬ 
leges nf a colony by known and settled boundaries; and this ac¬ 
knowledgement was by all who had an interest. New Jersey had 
none, Pennsylvania had none, the duke of York had none. The 
new province encroached upon none of them; Lord Baltimore as¬ 
serted a claim on the land, but it w r as afterwards decided to be un¬ 
founded. The crown alone could object, and the crown assented. 
This assent, let it also be borne in mind, was not an informal and 
hasty one, nor upon insufficient knowledge. The king was in the 
exercise of his royal power, was aided by his privy council, and 
had full information before him of all the facts necessary to en¬ 
able him to understand what he was doing. That he could, if so 
minded, have retracted his assent, it would be difficult to maintain. 
But he never did retract his assent, nor intimate any disposition to 
do so. 

On the 22d March 1682-’83, Charles II. made a grant by patent 
to James, duke of York, of the same premises wffiich had about 
seven months before been conveyed by the duke of York to Mr. 
Penn. This deed in its description is the same, precisely, as in the 
two deeds of the 24th August, 1682. , It describes separately, and 
grants separately, the two parts of the lower counties exactly as in 
th ose deeds. The only difference is, that in the former, there are 
two instruments; in the latter, only one. 

The original patent was here produced—brought from England 
some years ago by the late John R. Coates, esq., (who was an 
agent of the Penns,) wffiere it was given to him by John Penn, es¬ 
quire, a lineal descendant of William Penn, from among the title 
papers of the Penn family, rather, it was understood as a thing no 
longer of use to him, which might gratify curiosity in Pennsyl¬ 
vania and Delaware, than for any other purpose. At Mr. Coates’s 
death it went into the hands of Jacob G. Morris, esq., who has 
carefully preserved it, and now comes to us from the possession of 
Mr. Penn, with a presumption that it has been there accompa¬ 
nying his possession as a part of his title. 

Of this deed there have also been produced various exemplifica¬ 
tions; one from the rolls in England, one from the records in 
Delaware, a copy, sworn to be a copy, before the lord mayor 
of London, in 1735, and perhaps others. It is referred to, also, in 
the votes of the assembly. The original, or a sworn copy or exem¬ 
plification of it was an exhibit accompanying the bill of the com¬ 
plainants in the case of Penn vs. Lord Baltimore, filed in the high 
court of chancery of England, in the year 1735, and w T as in evi¬ 
dence in that case; and the original was offered to be, and proba¬ 
bly was, produced. 


236 


[21] 

If this deed had preceded the deeds of the duke of York, the regular 
derivation of the title from the crown to the lower counties could not 
have been disputed, and there would have been no question open, 
but upon the construction of the terms of the patent, as to what 
was conveyed. But above a century ago, in the case just cited of 
Penn vs. Lord Baltimore, the defendant set up the argument against 
the Penns, supposed to be derived from this order of the instru¬ 
ments, u that the grant to the duke being made after the deed by 
the duke to Penn, this grant must have been for the duke’s use, 
and not for Penn’s.” The answer on the other side was, u We 
have a fact that will determine that case; for we have the very 
original charter itself, under the great seal, in our custody, ready 
to produce, which if the duke had intended for himself, and to 
defeat our title by, he would have kept, and« not Mr. Penn, who 
was at this time of passing it, and for a considerable time longer, 
over in America.” These things are gathered from a large folio 
printed book, (belonging to Thomas Gilpin, esq.,) produced on the 
part of the United States, which contains the pleadings and evi¬ 
dence in the case, and has been called by the counsel u The paper 
book.” The case was decided by Lord Hardwicke, in 1750, and is 
reported in 1st Vez., 444. As the decision is deemed to be of 
great weight, in every aspect, and made a final end of all contro¬ 
versy in England, (for there never has been a dispute since,) and 
thus fixes a new epoch in the history of the province, it will be 
conducive to the right understanding of its proper bearing upon 
the immediate subject of controversy, to look back upon the earlier 
evidence which has been produced upon the hearing of the present 
case. 

The foundation of the new province upon the basis of the deeds 
from the duke of York, the exercise oi legislative power, the decla¬ 
ration of allegiance in Newcastle, and the union with the pro¬ 
vince of Pennsylvania, all approved by the crown of England, 
have already been seen. The union appears to have been only a 
sort of league, betraying a want of cordiality in the beginning, 
and leading very soon to uneasiness and dissatisfaction; and 
after a few years of restlessness and irritation, they finally 
separated, (with Mr. Penn’s consent,) in 1703. In the following 
year an attempt was made to bring them together again, and the 
people of the lower counties would appear to have been willing; 
but th e people of Pennsylvania would not consent. From 1703, 
therefore, they became separate provinces, to all intents and pur¬ 
poses, (except that the government powers and right of property 
in both were in Mr. Penn,) and so continued till the revolution. 
In this respect Judge Baldwin was misinformed, and supposed the 
union to have remained uninterrupted. 

Very soon after the deeds, Lord Baltimore set up a claim to a 
large part of Pennsylvania, and to the whole of the lower counties, 
quite to the Delaware river, upon the allegation that they were 
embraced in his patent. In 1685, the council to whom the juris¬ 
diction belonged decided against him, directing a line to be run 
north and south, which is the present western line of the State of 


237 


L21] 

Delaware. Soon after an agreement was entered into between Mr. 
Penn and Lord Baltimore, for settling all disputes between them. 

In 1692, Mr. Penn was removed from his government, and Ben¬ 
jamin Fletcher was appointed by the crown. The general ground 
for this measure was, that disorder had occurred in his government. 
There was no question about title, nor was either province dis¬ 
turbed. They went on as before. In 1694, Mr. Penn was restored, 
and the government descended to his children. There has been a 
very general belief, that the real offence of Mr. Penn w r as his sup¬ 
posed regard for the Stuart family, and particularly for James 2d, 
then banished from the throne and kingdom. 

In and about the year 1711— ? 12, a surrender of his government 
powers to the crown was contemplated by Mr. Penn, anj it is un¬ 
derstood that a negotiation for the purpose was considerably ad¬ 
vanced, when his capacity to proceed further w r as arrested by ill¬ 
ness, which prostrated his mind and memory for the remainder of 
his life. Pending the treaty, the crown consulted the attorney 
' general, Edward Northey, and his opinion, as reported by him, is 
in Chalmers’s collection, page 32, dated February 25, 1711-’12. 
Mr. Northey, among other things, says, u and he has made out to 
me his title thereto,” that is, to the government of Pennsylvania, 
and of the “ town or colony of Newcastle, alias Delaware.” This 
was in the time of Queen Anne. 

In 1717, the earl of Sutherland, alleging that he was a creditor 
of the crown to the amount of <£20,000, applied for a grant of the 
three lower counties. It was referred to the attorney and solicitor 
general, Edward Northey, before mentioned, and W. Thompson. 
They made an elaborate report, which is published by Chalmers, 
page 39, dated October 28, 1717. They heard the parties, who 
were before them—the earl of Sutherland on one side, and on the 
other, “Mr. Penn’s mortgagees and other purchasers under hjm.” 
Mr. Penn took no part. They state, also, that no deed from the 
crown was produced. For both these things they give a very suf¬ 
ficient reason, when they say, (p. 45,) u but they presume the said 
late duke of York might have some other grants thereof, which 
Mr. Penn might give an account of, but cannot, 1 being under a lu¬ 
nacy.’ ” Mr. Penn died in the following year, 1718. They con¬ 
clude their report by submitting for consideration, “whether it 
will not be reasonable that your Majesty’s title should be estab¬ 
lished by the court of chancery, before any grant should be made 
of the premises.” This was in the reign of George the 1st. The 
application does not seem to have been further pursued, nor was 
any use made of the hint about chancery on that application. The 
title, therefore, passed undisturbed by the crown, through five 
reigns and a revolution, and the province continued as it was founded 
in 1682, though it was always in view of the authorities of Eng¬ 
land, and as has been seen, frequently subjected to the examina¬ 
tion of the king’s legal advisers. 

In 1735, William Penn being dead, a bill was filed in the high 
court of chancery, in England, by John Penn, Thomas Penn, and 
Richard Penn, his sons, against Charles Calvert, Lord Baltimore, 


[ 21 ] 238 

to enforce the performance of the agreement made in the preceding 
century, for fixing the boundaries between Pennsylvania and Mary¬ 
land, and between Maryland and the lower counties. Recurring 
now to the advice of Mr. Northey and Mr. Thompson to the crown, 
to have the question of title determined in chancery, there is no 
reason to doubt that this suit was allowed, if not directed, by the 
privy council. “It is certain,'* says Lord Hardwicke, replying to 
•an objection to his jurisdiction, “ that the original jurisdiction in 
cases of this kind, relating to boundaries between provinces, the 
dominion and proprietary government is in the king and council.” 
“The king, in council, is the proper judge of the original right.” 
He adds, that the king, in council, might look upon the agreement, 
and allow it as evidence of the original right, but he could not 
decree it as an agreement. “ And, therefore,” he says, “ the lords 
of the council have remitted this matter, very properly, to be 
determined in another place, on the foot of the contract.” Lord 
Hardwicke was well aware of the questions to be decided finally in 
this case, as appears in the striking exordium of his judgment, u it 
being for the determination of the right and boundaries of two 
great provincial governments and of three counties, of a nature 
worthy of the judicature of a Roman senate, rather than of a single 
judge;” adding, “ and my consolation is, that, if I should err in 
my judgment, there is a judicature equal in dignity to a Roman 
senate, that willcorrect it.” No appeal was ever taken to the 
House of Lords. 

In the decree, liberty was reserved to either party to apply to 
the court, if, by “ any act or right of the crown,” execution of it 
should be obstructed. This liberty was never used. No act or 
light of the crown was interposed. 

One of the objections, among many, made by Lord Baltimore, 
was upon the order of the deeds—that is, that the deed to the duke 
of York was subsequent to his two feoffments. Lord Hardwicke 
lays aside the doctrine of estoppel, evidently not because it was 
inapplicable or insufficient in law for answering the objeetion, but 
because the expression of it was unnecessary, and perhaps inconsis¬ 
tent with the deference due to the crown. What his opinion was, 
is evident enough; for he says, “the duke being in the nature of 
a common person, was in a condition to be estopped.” Being 
liberated from the restraints of the lord chancellor, we are at 
liberty to say, that the duke, at the date of the deeds, being a 
subject, was, in this respect, only “a common person,” and as 
much bound by an estoppel as any other subject. He did not suc¬ 
ceed to the throne till two years after. Admitting it to be true 
(which cannot be admitted for reasons it would take too much 
time now to enter into) that the king is not bound by estoppel, it 
would be an unreasonable and most unjust stretch of the preroga¬ 
tive to suppose that, when a man ascends the throne, he is liberated 
from all estoppels he had previously incurred as a private person. 
It might as well be contended that he is freed from all grants he 
has previously made; for the real equity of an estoppel, in such a 
case as this, is neither more nor less than to make the two deeds 


239 


\ 


[ 21 ] 


operate as one grant, and thus do plain justice between the parties. 
It is no subtlety nor refinement of law, but the natural dictate of 
common sense and common honesty. There may, perhaps, be in¬ 
stances of estoppel, such as from recitals and the like, which would 
affect a private man, and do not touch the king; and, on this ac¬ 
count, what is now said is limited to the very case in question. 
The conclusion is, that the deed of 1683 was an estoppel. 

But there is another answer to the objection which satisfied Lord 
Hardwicke, and is fully satisfactory. If there were no estoppel, 
and the deed of 1683 vested the legal right in the duke of York, 
where it remained when he became king, he was a trustee, a royal 
trustee, and the equity would be in Mr. Penn, or in the people of 
the province, it matters not which. That the king can be a trustee, 
would seem to be settled, whatever may have been formerly thought, 
from a supposed analogy to the doctrine of uses. Lord Hardwicke 
is authority for this, in Penn vs. Lord Baltimore. So is the earl of 
Kildare vs. Eustace.—1 Vern., 439. So is Burgess vs. Wheate.— 
"1 Eden., 223. Trusts have, in equity, a sort of independent existence 
for their own preservation. With reference to the trustee, actual con¬ 
fidence in the person is not essential. Hence, a corporation may be a 
trustee, and so may the king. Indeed, it is an established maxim 
of equity, that a trust shall not perish for want of a trustee. The 
real difficulty, in the case of the king, is about the remedy. u The 
arms of equity,” says Lord Northington, in Burgess vs. Wheate, 
u are very short against the prerogative.” Chancery, the appro¬ 
priate forum of trusts, is without power, because it is said u it has 
no jurisdiction over the king’s conscience; for that it is a power 
delegated by the king to the chancellor to exercise the king’s equit¬ 
able authority betwixt subject and subject.” So said by counsel in 
Pawlett vs. Attorney General.—Hards.,468. Hence, the caution of 
Lord Hardwicke, in Penn vs. Lord Baltimore. u I will not decree 
a trust against the crown in this court,” though he did not hesitate 
to declare his opinion that the king was a royal trustee. The right 
of the cestui que trust, however, is not questioned; nor is it ques¬ 
tionable. There has been a suggestion that, in such cases, perhaps 
relief might be obtained through the exchequer, and the subject 
may certainly prefer a petition of right. But that is not material 
to the present purpose. If the right be established, no remedy is 
wanted; and that the equity is sufficient to raise a trust is clear, 
as well from what has been stated, as also from the covenant for 
further assurance in the deeds of 1682. There was, at all events, 
therefore, an equitable estate, which is quite as available as a legal 

•estate. 

This decree of Lord Hardwicke settled the validity and legal 
sufficiency of these deeds, the right of the province under them, 
and, of course, its boundaries, as described in the deeds. No ap¬ 
peal was taken, nor did either party ever apply, under the reser¬ 
vation in the decrees, to set up any “ act or right of the crown.” 
It was universally acquiesced in, and became, by its own force and 
•common consent, the law of the land from that time forth, till the 
crown of England ceased to have power either to confirm or to dis- 


240 


[21] 

pute the rights about which it was made. Now, this was the same 
province which had been founded, as we have seen, in 1682; these 
were the deeds under which it was founded; and these were the 
boundaries by which it had been defined from the beginning. 

Twenty-four years more elapsed, without controversy or ques¬ 
tion in England, its boundaries acknowledged by the crown, (the 
crown, in truth, had never disputed them,) when the delegates 
from u Newcastle, Kent, and Sussex, on Delaware,” on the 5th 
September, 1774, met the delegates from the “several colonies 
and provinces in North American, assembled at the Carpenter’s 
Hall, in the city of Philadelphia.—Journals of Congress, 1774. 
New Jersey had also delegates there, and so had Pennsylvania 
and Maryland, all immediate neighbors, by whom they were 
bounded. 

As a province or colony they were received, having a definite 
existence under the crown of England. Such as this province was 
under the crown of England on that day, such was she acknow¬ 
ledged to be by being received into that Congress. On that day, 
we have seen this colony’s rights under the crown, and her boun¬ 
daries, which were part of them, had stood the shocks of twenty 
years of controversy, and finally were settled by a solemn decree 
in chancery, and rested securely and quietly upon the foundations 
laid in 1682. In the struggles and hazards which ensued this 
province took her full share. On the 4th July, 1776, she declared 
herself a sovereign and independent State, by the name of “Dela¬ 
ware,” and by the united efforts of herself and her sister States 
was enabled to maintain it. But this State was the same that was 
a feeble colony in 1682, with the same metes and bounds; the same 
that in her more advanced age had had her metes and bounds judi¬ 
cially established by the high court of chancery, and, let it be 
added, whose boundaries had never been even questioned by the 
crown from the beginning, but in every way sanctioned. Could 
such a State, after all this, be called upon to vindicate her orignal 
rights'? Lord Baltimore had a long controversy with her, because 
their grants interfered. But it was settled in England before the 
revolution. The State of Maryland has never claimed to revive 
it. With New Jersey there was no interference, nor is there now. 
New Jersey has had no controversy with Delaware, and has none 
at present, so far as • is known. When Delaware became a State 
there was no subsisting controversy with any body as to her boun¬ 
daries. The change which then took place was from the condition 
of a dependent province of the crown of England to that of an in¬ 
dependent sovereign State, achieved by conquest. Allegiance to 
England was thrown off; the royal rights reserved by charter were 
ended, and with them the government powers of the proprietaries 
derived from the crown, and all their incidents. They fell to¬ 
gether, at the same time. The blow was not struck at the proprie¬ 
taries. It was aimed at the crown, and when it took effect there 
the subordinate government gave way with the head it depended 
upon, and ceased to exist. As far as there was any derivation in 
the case it was, in this sense, from the crown of England; and if 


241 


.[21] 

there had been (as there was not) an outstanding royal claim of 
any sort, that, according to Martin vs. Waddell, would have in¬ 
stantly become vested in the new sovereignty. From this view it 
follows, unavoidably, that if the deed from the king to the duke of 
York had never existed, but only the two deeds from the duke of 
York, still—as the province had been founded under them, had 
existed upon its originaT foundation for nearly a century, was de 
facto a province or colony, and received as such into the union of 
the colonies, and was by them all declared to be a State of the 
Union, has been so ever since, and still is so—it would be very 
difficult indeed to to maintain that her limits and boundaries were 
not incontestably proved by those deeds, unless they interfered 
with some superior and better right. The de facto existence be¬ 
came a legal one, to all intents and purposes, by the affixing of 
her own sovereign seal, which had superseded the great seal of 
England, and acquired all its virtue and power. If necessary, this 
view might be carried even further. A colony or province, without 
any deed at all, would, under the like circumstances, have become 
a State; and if, from the 4th July, 1776, to the present day, she has 
been, and still is, a State of this Union,' with the same rights and 
privileges as the other States, and there were any authentic docu¬ 
ment to prove her boundaries, (though not a royal patent or grant,) 
and they interfered with no other rights, it would be very difficult 
to impeach her title. But even if the royal consent or recognition 
were indispensable, it is surely to be found in the treaty of peace 
for Delaware as clearly as for any other State. And now, it is 
proper to remark, that all the arguments urged against her upon 
the very question to be decided, namely, her rights in the river, 
the islands, and the soil, however they may profess to be restricted, 
have one common fault; they go too 'far; they prove too much. 
They would take away the whole right of Delaware, land, river, 
islands, and all. For example, one of the learned counsel has 
produced the charter or patent to Lord Baltimore, and insisted 
that it went-entirely to the river Delaware. If so, and it is in 
force now, the whole territory of Delaware on the mainland would 
be taken away, and nothing left but the river right, if, indeed, that 
could stand alone. Whereas, as has been shown, the right between 
them was decided in council, in 1685, the 13th of November, by 
fixing the present line; they entered into an agreement between 
them in conformity, and the specific performance of that agreement 
was decreed in chancery in 1750. The original right has never 
been open since. Judge Baldwin, on the other hand, allows her 
title to the main land to be good by possession, which, it is re¬ 
spectfully submitted, is a low and precarious ground to place the 
title of a State upon; but he seems to deny any right but posses¬ 
sion, and altogether to deny it as to things which were not of a 
nature to be actually possessed. These objections are now too 
late, if they ever had any foundation at all. They were long ago 
decided and settled in England. They were decided and settled at 
the revolution; and, as to her boundaries, they stood defined and 
authenticated in the deeds of the duke of York, in the patent of 
16 


*242 


[21] . 

the king, in the proceedings of council, and in the high court of 
chancery, never having undergone a change from what they were 
at the beginning. 

This course of observation, however, must here be suspended for 
a moment to examine the construction of the deeds, as respects the 
immediate question upon original grounds, ^est it might be sup¬ 
posed that they were doubtful or insufficient, or stood in need of 
aid, to give them a meaning they do not of themselves properly 
import. Upon a careful and deliberate consideration of the whole 
subject, and of the arguments urged against the right of Delaware, it 
is believed, that the deeds are quite clear. The question is, did the 
boundaries of the province go into the Delaware within the twelve 
miles circle, or did they not? The first great rule in regard to 
such inquiries is, that there is to be no interpretation where there 
is nothing that requires to be interpreted. If the words be clear 
in themselves, they are to be accepted. u Words,” says Ruther- 
forth, are the common signs that mankind make use of to declare 
their intention to one another; and when the words of a man ex¬ 
press his meaning plainly, distinctly, and perfectly, we have no oc 
casion to have recourse to any other means of interpretation.—Inst. 
Nat. Law., b. 2, c. 7, § 2. And for this he cites the support of 
Grotius.—B. 2, c. 16, § 1. This is the same rule that is laid down 
by Blackstone.—1 Com., 59. They all agree, too, that words are to 
be taken in their most usual and known signification and technical 
terms and terms of art, according to the interpretation of the 
learned in each art, trade, or science. And how can it be other¬ 
wise? Words make contracts between parties, which are to be un¬ 
derstood in one sense by both. How can that be, unless there be a 
standard to be resorted to, as nearly fixed as possible, especially, 
in the more important transactions of life? Now, if with this 
single rule, any man, learned or ifnlearned, will read the duke of 
York’s deed for the upper part of the province, and that part of 
the king’s deed which is for the same, he will be at no loss to say 
what it is that they grant. They are the appropriate legal words 
for the purpose, and evidently used skilfully and upon deliberation, 
and with comparatively accurate knowledge, for the New Jersey 
grant and the grant to Lord Baltimore, and the charter of Penn¬ 
sylvania, were all prior, and there had been a long contest with 
the Dutch and Swedes, who had settlements and forts on the west 
side of the Delaware river, from cape Henlopen to the north line 
of the city of Philadelphia, where they had been in possession for 
nearly sixty years. Two of the principal were within the twelve 
miles circle; that is, one at Newcastle and one at the mouth of the 
Christiana. Besides, the words employed are the appropriate legal 
terms for making the grant. When the same subject comes up for 
judgment, the same terms are employed for describing what was 
granted, as may be seen in Martin vs. Waddell, and Munday vs. 
Arnold. The same terms were used, substantially, in patents and 
grants which conveyed or intended to conyey navigable rivers, as 
in the patent to the duke of York, the grant to Lord Berkeley and 
Sir George Carteret, and from them to the proprietaries of New 


243 


[21] 

Jersey. This is still another test. If the object was to grant the 
river, islands, and soil, could any lawyer or conveyancer have de¬ 
vised, or can any one now devise, a better or even as good a form of 
words to accomplish it'? Strike them out, and all the other pur¬ 
poses of the deeds, it is true, are effectuated without them. They 
are thus rendered surplusage. This would be an offence against 
another established rule of construction, which requ’res that all 
the words of an instrument should, if practicable, be allowed to 
have some sense and operation. But while these words stand, it 
seems to be impossible that now, after more than a century and a 
half, any one, and particularly any third person, and, above all, a 
third person without right, power or interest in the subject matter 
of the grant at the time it was made, and for nearly a century after, 
can claim to have them stricken out or disregarded. 

The intimation by Judge Baldwin, in his charge, that the two 
grants are to be so construed together as that one may control the 
other, so as to give them the same eastern boundary, with all 
respect for his learning and ability, cannot be admitted. In a legal 
estimate, they are not one deed, because they are two deeds* and 
they are not the same, because they are different. Why were they 
two, and why should they differ? The grantor so willed it, and he 
did as he willed, and as he had a right to do, in language evidently 
framed by learned advisers. They can well stand together, for 
there is no contradiction between them. If a man were to give 
estate A. in fee simple^ estate B. in fee tail, and estate C. for life 
or years, it would seem extraordinary to say that he gave the same 
estate in all. 

Nor is the difficulty overcome when the first step is taken. Ad¬ 
mit (if it be possible) that the deeds are thus to be construed, which 
of them is to have the controlling power, the one that carries the 
boundary over to the low-water mark, on the Jersey shore, or the 
one that stops at the low-water mark on the Delaware side. It is 
apprehended that there is no legal principle to aid in deciding that 
question, and that in the apparent search for realms, we should 
find ourselves in the region of fancy and imagination. Of what 
consequence can it be what were the reasons of the king and the 
duke of York, or whether they had any reasons at all. Their will 
decided them to give what was their own, and they had a righkto 
give. If they were not deceived in the grant, (as certainly there 
is no reason to believe they were,) it is wholly immaterial whether 
the act commended itself to other men’s reason or not—whether it 
was wise or unwise. Neither of them has had much credit with 
posterity for wisdom. But this act has never been imputed to them 
as a crime or folly. In the most sober judgment, it must rather be 
deemed reasonable and meritorious. The three lower counties, at 
Newcastle, had a width on the land of but twelve miles, being cut 
off to the westward by the line between them and Lord Baltimore. 
They had no great navigable rivers. That line, probably running 
upon the summit between the Delaware and Chesapeake, where the 
heads of the streams were turned in opposite directions, probably 
left them no water communication with that great estuary and its 


244 


[21] 

tributaries. Their neighbors, New Jersey, Pennsylvania, and Mary¬ 
land, all with extensive territories on the land, abounded also in 
great navigable rivers within their limits. Was it then, it may be 
inquired, so unreasonable to allot them as a part of their possession 
a little addition to their width, by giving them a part of the river, 
reserving only the public rights (navigation for instance) which 
were free and common to every subject, and now are to every citi¬ 
zen of the United States? Was it so unreasonable as of itself to con¬ 
demn the grant, and compel a construction against the clear words 
to secure its condemnation? From the circle downwards, the 
breadth of the land increased, and did not so much demand enlarge¬ 
ment. Besides, at the southern point where the circle strikes the 
water, the river begins to widen rapidly and becomes the bay, 
which there might be good reasons for not granting. There is 
nothing which seems at all unreasonable in the grant. It was made 
to freemen, capable of holding and enjoying it, of transmitting it 
to their descendants, who, in due time, asserted and maintained 
their right to independence, and in the conflict which ensued, and 
in all the duties of its more intimate union with the other States 
under the constitution, Delaware has contributed its full proportion 
of what was required for the public welfare and honor. So has 
New Jersey. In this respect they are equal. But who can say that 
it was more unreasonable or less conducive to the well being and 
happiness of our country, or of mankind, that it should have fallen 
to the lot of Delaware rather than of New Jersey, or been left to be 
equally divided between them. 

But this can hardly be called legal argument. There is too 
much in it that is apart from the real question. What is the con¬ 
struction of the grant? Is it in any respect wrongful? These are 
the true questions. Both are believed to be with the State of Del¬ 
aware. 

Returning to the point digressed from, when the question of con¬ 
struction of the deeds was taken up, it is only necessary to observe 
that the colony of the three lower counties having been received 
into the Congress, became in due time a State. This was a great 
change. But, great as it was, it was the whole change. No one 
ever thought that by becoming a State, the territorial rights and 
possessions previously belonging to it, were reduced or altered. 
Where was there a power to do either? Not, surely, in any other 
State. As surely, not in the Congress of the United States; and 
these two descriptions embrace the whole circle of acknowledged 
authority. When the charters of some of the States were found 
to include large masses of vacant land, which might be dangerous 
to the peace of the Union, did Congress, or either or all of the 
States, attempt to define or limit their boundaries? Congress in¬ 
vited them to make cessions, which, they freely and patriotically 
did, by compact, and with the conditions they thought fit to insist 
upon and Congress to accept. The declaration of independence, 
from the day it was made, is thenceforth the title of every State. 

What remains, then, to be considered, may be embraced in this 
general inquiry: Has the State'of Delaware, by any act or default 


245 [ 21 ] 

of her own, parted with or lost the right she then had, or any part 
of it? 

The examination of this question must, however, be preceded by 
an observation no one will refuse his assent to, which, nevertheless, 
when fairly carried out, will be found to meet and conclusively to 
answer most, if not all, the objections alleged to the title of the 
United States, derived from the State of Delaware. It is this: that 
the inquiry is to be understood as applied to a sovereign State, 
with all the attributes of sovereignty, except such as have been 
yielded to the United States. Whoever would claim from her, or 
would claim against her, must, therefore, make out such a case as 
will be available against a sovereign. More clearly must it be so, 
if the claim be to take from her a portion of her territory, and a 
part of her boundaries; not to come in under her and be one of 
her community, but to transfer them to an alien jurisdiction; in 
other words, to make them part and parcel of another State. Such 
"is the claim made by Mr. Humphrey. The right he asserts is not 
under the State of Delaware, but adverse to her. 

As long as the discussion was upon the boundaries of the respec¬ 
tive States, every argument which conduces to show the right to 
be in one rather than the other, is fairly applicable and' entitled to 
respectful attention, which they have accordingly received. But 
the moment that point is settled, and the boundaries established, 
all within the line on the respective sides is part of the territory 
of the one it is adjudged to, and is subject to her exclusive sov¬ 
ereign jurisdiction. To her alone belongs the rightful power to 
govern and make laws for it, without interference by the United 
States, or by any State. That there was a dispute about bounda¬ 
ries, was a good reason for settling it; but none for holding it less 
the territory of the State after the dispute is settled, than any other 
part of her possessions. No one, for example, would affirm that 
what fell into Maryland or Delaware by fixing the line between 
them, or between Pennsylvania and Maryland, or between Penn¬ 
sylvania and Virginia, is less within their jurisdiction than any 
other portion of the territories of these States. Wherever their 
limits are, up to that line, their law making power extends and 
governs. This principle, believed to be undeniable, applies in full 
force to the present case. If it has been necessary, for the pur¬ 
pose of deciding the controversy about the Pea Patch, to deter¬ 
mine, incidentally, the question of the boundaries of the two States 
at that part of the river, (and it has been so argued on both sides,) 
and it has been determined that the island is within the territory 
of Delaware, it must follow that the island is also within her sov¬ 
ereignty; and whoever puts his foot upon it, is subject to her laws 
just as much as if he resided in Newcastle or in Wilmington. 
Whoever would seek to recover it at law, must go into her courts, 
including in that description the eircuit court of the United States, 
where there are proper parties; a court established for administer¬ 
ing the laws of the State, in civil cases, where one of the parties is 
an alien, &c., of another State, or otherwise entitled to the aid of 
an United States tribunal; but still to administer those laws. In re- 


246 


[21] 

gard to the Pea Patch, there has been a conflict of jurisdiction. 
Dr. Gale brought an ejectment in the circuit court of the United 
States for the district of New Jersey, recovered a judgment, and 
obtained an execution. The United States brought an ejectment, 
in the district of Delaware, got a judgment, issued an execution, 
and the marshal of Delaware was authorized to turn out those 
whom the marshal of New Jersey had been authorized to put in. 
Records of both were produced. Both were necessarily disre¬ 
garded as affecting the question now under consideration. The only 
thing certain about them was, that both could not have jurisdic¬ 
tion; and which of them had, depended upon exactly the same 
point as the present case turns upon, namely: whether the island 
was in New Jersey or Delaware. And it may also be remarked, 
that in one of them (Delaware) the judgment was by default; in 
the other, it was upon a trial essentially ex parte, with a very 
imperfect exhibition of evidence, by no means to be compared with 
what has been produced in this arbitration. 

Considering it to be established that the island is within the 
limits of Delaware, Mr. Humphrey is to make out a title to it in 
one of two ways: by showing that he has himself acquired it, in 
which case’he must show that his acquisition of it has been under 
or according to the laws of Delaware; or that New Jersey has ac¬ 
quired it; and that her title enures to his use. 

As to the first, nothing has been alleged but possession. By the 
laws of Delaware, possession does not avail against the State. The 
statute of limitation, between individuals, is truly said to be a law 
of peace. An exception to it, in favor of States, or a consider¬ 
able extension of time in their behalf, may be as truly said to be a 
law of necessity; for States cannot occupy, as individuals, so as to 
have an actual manifest possession, which is notice; nor can they ap¬ 
ply the same vigilance which is reasonably required of private pro¬ 
prietors. It is not neeessary to dwell on this. Actual possession 
there has not been. His honor, the late Judge Baldwin, says, that 
by the survey of 1784, and its acceptance by the proprietaries, the 
Messrs. Hall, and Dr. Gale under them, stood in the place of the 
west New Jersey proprietaries, with all their rights. u His legal 
seizin or possession,” continued for 31 years, till 1815, would bar the 
right of entry of any adverse claimant. Had the right been in the 
proprietaries, and the island within New Jersey, the legal seizin 
or possession, as before stated, would have accompanied the grant. 
But neither part of the postulate is correct. The proprietaries had 
no right, as has been seen, and the island was not within New 
Jersey. When Dr. Gale, or some one claiming under him, ob¬ 
tained the title of the State, in 1831, he could get no legal seizin, 
for one of the reasons already stated; and for this additional one, 
that the United States were then in actual adverse possession. 

Thufc, then, there was no legal seizin or possession. That there 
was no actual possession under the survey, worthy to be so called, 
or to found a right upon, seems to be an unavoidable inference 
from the evidence. The survey could not have been made on the 
ground. Its date, 1784, is near the time when the island was about 


247 


[21] 

the size of u a man's hat,” and overflowed every high tide. There 
was no resting place upon it for the surveyor's foot or his instru¬ 
ment. But there is something else, much more conclusive. The 
surveyor returns the contents to be 178 acres. More than fifty 
years afterwards, when the island had been growing all the time 
it contained by accurate measurement, only 87.60 acres. The sur¬ 
veyor, therefore, did not begin a possession, though he made a suffi¬ 
cient survey if the proprietaries accepted it, as they certainly did. 
No survey, indeed, was necessary, for an island is sufficiently defined 
by the waters. The only other evidence of possession is, that in 
the spring of 1813, April or May, Doctor Gale took down a large 
party of men. The witness who proved it was one of the company. 
He said they went there to fish, and it was stated that Doctor Gale 
had in view to clear a fishery, but it did not answer, on account of 
the strength and direction of the currents, which swept the nets 
into deep water and let the fish escape. They found upon the 
island a rough frame house, recently erected, (probably by Doctor 
Gale,) of one story in height, with one room in it, and no chimney 
or fire-place. They used, for cooking, a stove they carried down 
in a boat, and brought away with them. They left the island in 
August, and, as far as appears, never returned. What became of 
the house is not in proof. The occurrence just related was after the 
military officers of the United States had fixed their attention upon 
the spot as a site for a defence of the river. About the same time, 
General Bloomfield, who was in command of the military district, 
w*ent to Delaware to negociate a cession of the island to the United 
States, being himself a citizen of New Jersey, and having been her 
governor and ex-officio chancellor, and, it is reasonable to suppose, 
acquainted with her rights. In December, 1814, Captain Clarke, 
of the United States topographical engineers, under orders from the 
War Department, taking with him one hundred soldiers and some 
thirty or forty workmen, and the frame o»f a block house, went 
upon the island to commence the work of a fortification, and re¬ 
mained there till June, 1816. He states that there was nobody on 
the island when he went there, nor any building or u vestige” of 
one, and that nobody was there during his stay but those under his 
command. From the survey, then, ’till 1816, there was no posses¬ 
sion, and from that time the United States have been in possession. 
The fishing visit of 1813 cannot be called a possession, and if con¬ 
nected with Doctor Gale’s claim of title, it might be so termed for 
the time, still it was abandoned, leaving no mark of ownership. 
There w T as no actual possession, therefore, even if that could have 
been available. The evidence is that the island was occupied only 
by crows, selected by them as a lodging place for its solitude and 
security. 

Has the State of New T Jersey acquired any right under wdiich his 
claim could be covered? If a case were established, in point of 
fact, it would be necessary to inquire how such a right could be 
acquired by New Jersey, the territory in question being within the 
State of Delaware, and subject to her laws and government. But 
it does not seem requisite to enter upon that inquiry, inasmuch as 


248 


[21] 

the proofs are deemed to have made out no such case. The con¬ 
troversy, it will be seen, embraces two descriptions of rights, 
namely, the river and the soil under it, and islands in the river. 
The former is not susceptible of actual possession the latter are. 
To begin with the latter. The evidence is, that within the twelve 
miles circle, before the Pea Patch made its appearance, there were 
only two islands, (so called,) Ree^Jy island and Bombay Hook. 
They have both been in the possession and under the jurisdiction 
of Delaware. Bombay Hook, it is believed, cannot with propriety 
be called an island in the river. It lies within the line of the main 
land of Delaware, above the low water mark of the river, and has 
been surrounded by water only by reason of an artificial outlet 
being cut for Duck creek into the bay. There remains, then, only 
Reedy island. It may be said that it lies nearest to the Delaware 
shore. But it was in the river, and if the right to the river and 
islands was in the crown, while Delaware was a province, Delaware 
could have had no right in Reedy island, whether it was on one 
side or the other of the channel. Her possession, as of right, is 
thus a strong proof that her title was prior to that which would 
have accrued to her by the devestiture of the right of the crown, 
and the leaving of the river vacant between two States. New 
Jersey had no island within the twelve miles circle. # 

A passage in Smith’s History of New Jersey, it was thought, dis¬ 
closed some right of New Jersey to an island there called Stuypson’s 
island. The author, in giving an account of a negotiation with the 
Indians, says: “ Also Stuypson’s island, near Delaware river. 
Tom Store claims thirty acres,” &c. The island was not found 
upon the map during the investigation, being searched for in the 
river, though Smith’s language, “near Delaware river,” indicated 
that the distance was nQt from the land into the river, but from the 
river into the land. A close examination since has shown that it is 
what may be called an “inland island,” formed by small streams, 
with perhaps, the river on one side, but above the low water mark, 
and within the outline of the land, as “Bombay Hook,” is on the 
other. It is far below the twelve miles circle, and is undoubtedly 
a part of New Jersey, by her original right; but not an island in the 

river or bay. . . , , . 

Something was also said about Egg island, but no evidence given. 

From the map, it appears to be a very small island, low down in 
the bay, out of the circle, lying near to the main land of New 
Jersey. Whether it is separated from the main, or adjoins it, by 
whom it is held, if by any body, and under what tenure, there is 
no proof in the case. New Jersey, or those claiming under her, 

had no island within the twelve miles. 

As to the Pea Patch island, New Jersey had at no time posses¬ 
sion and cannot be said to have setup a right to it. The contrary 
is quite clear. The right asserted was that of the west New Jer- 
sey proprietaries, which, as has been seen, was adverse to the 
State and could not in any way enure to her use. So of the right 
0 f Doctor Gale and those deriving from him. And when, at last, 
it came to be doubted whether the proprietaries had any right at 



249 


[21] 

all, and when the United States were in actual possession, and 
New Jersey was asked for an act, that act did not assert any title, 
but only released her right and interest, whatever it might be. 
Delaware, on the other hand, was in possession, as far as a State 
could be. There is satisfactory evidence as to one individual re¬ 
siding on the island after the United States entered upon it; that he 
was assessed and voted in Red Lion hundred. 

So much for the islands. Now as to the jurisdiction. There is 
no evidence to establish a single instance of its exercise by New 
Jersey over that part of the river and islands, and there is no reason 
to believe that there was one. One witness was called, to show 
that process from New Jersey had been once served upon the Pea 
Patch island, in recent times; but it failed entirely. There w T as no 
process; there was no arrest, and all that was made out was that a 
constable from Salem county came with a pistol, and went away x 
without a prisoner. The ejectment in the circuit court of the 
United States for the New Jersey district, is of no w T eight. It was 
brought by an individual, of his own authority; it was after this 
controversy had begun, and for the purpose of' determining this 
controversy. 

On the part of Delaware, the evidence is full and complete of 
the exercise of jurisdiction over that part of the river and islands, 
as far back as evidence can be expected to go. The process of her 
courts, and of the courts of the United States sitting in that dis¬ 
trict, for the arrest of persons and property afloat, has been issued 
and executed, and continues so to be, quite over to the low water 
mark on the Jersey side; and this, not occasionally, but habitually, 
without doubt or question, as a matter of course, whenever applied 
for. Such arrests have been made of persons and property escap¬ 
ing from above. The cases have been contested upon every ground 
that ingenuity could suggest, or the zeal of parties prompt; but 
there never has been an instance of any one disputing the jurisdic¬ 
tion in the courts, either of the State or of the Union. This must 
be admitted to be very persuasive evidence. In the absence of 
proof to the contrary, it must be deemed conclusive. 

Now, this evidence comes from numerous witnesses, of great in¬ 
telligence and unquestionable credit, well informed upon the sub¬ 
ject they speak of, by their pursuits in life, and it coincides (for 
it did not require support or corroboration) with the proof of par¬ 
ticular instances, both by parol and by exemplifications of records, 
here produced. The exhibition of the evidence at large, or even a 
considerable part of it, would be tedious and unnecessary. The 
whole was carefully reduced to writing, and will be preserved. 
Dut it is quite impossible to look at the list of witnesses without 
feeing unbounded confidence that, from their own experience, and 
from the traditions and other sources of information of the past, 
which lawyers and judges are obliged to explore, and to follow as 
their guide, we have the whole knowledge of what has been held 
and done 'from an early, perhaps the earliest, period, concentrated 
and condensed in this body of testimony. With nothing to contra¬ 
dict it, (and there is nothing,) one might safely say, such has 


250 


[21] 

always been the law of Delaware. Kensey Johns, esquire, for ex¬ 
ample, above eighty-eight years of age, states u that he has re¬ 
sided in Newcastle since 1780, now sixty-seven years. He was a 
practising lawyer for twelve years, afterwards chief justice of the 
supreme court for thirty-eight years, afterwards chancellor of the 
State, since that time, and at present, living a private gentleman.” 
Any one else, speaking of him, would add, and, during tlie whole 
of this lengthened period, exercising a most wholesome influence, 
by example and precept, upon the mind and morals of the commu¬ 
nity he lived in. He says u it has always been considered and 
held by the courts, public officers and lawyers of Delaware, as far 
as my memory reaches, that the title and jurisdiction of the State 
of Delaware extended to a circle of twelve miles around Newcastle, 
to low water mark on the New Jersey shore. I have never heard 
the title and jurisdiction of the State of Delaware, over that part 
of the river Delaware, doubted by any court, public officer or law¬ 
yer in Delaware, on any occasion whatever. Within my know¬ 
ledge ^nd remembrance, writs have been often issued out of the 
courts of Delaware, to seize vessels and persons in all parts of the 
river Delaware, within the circle to low water mark on Ihe New 
Jersey shore, and no dispute, question, or plea was ever made or 
suggested, within my memory, before any court in Delaware, against 
the title of Delaware over all such parts.” And, again, u the 
State of Delaware, for the whole period of my remembrance, and 
as far back as my researches extend, has claimed and exercised ju¬ 
risdiction over the Delaware river and soil thereof, within the 
circle, to low water mark on the Jersey shore, and the State has 
never failed to exercise this jurisdiction when called upon or asked 
to do so.” Eleven other witnesses, eminent citizen* of Delaware, 
with large means of knowledge, whose names, if repeated, would 
command respect for their testimony, make similar statements, and 
some of them give an account of particular cases of arrest and seiz¬ 
ure, known to them personally. John Steele, also, a citizen of 
Pennsylvania, gives an account of his following a vessel down the 
river, getting process against her from a court in Delaware, and 
having it executed far over on the east side of the river. 

New Jersey, as before stated, never objected to the claim of 
Delaware, nor, as far as appears, set up any claim of her own. In 
1709, the boundaries of counties were fixed by an act of the legis¬ 
lature. Those on the Delaware were bounded on the west by the 
river, the lines running along the river shore, and not into the 
river. In 1822, it is true, an act was passed to extend one or more 
of the lower counties into the river. But this was after the United 
States had obtained the cession from Delaware, was in actual pos¬ 
session, and this controversy had begun. Besides, of what avail 
is such an act of the legislature, except as some evidence (under 
the circumstances just mentioned very feeble, indeed) of a belief of 
right, and keeping up of a claim over her own territory; £ constitu¬ 
tional act of a State legislature, touching any part ofthe territory, 
is undoubtedly potent, and is notice to all the world. But as to 


I 


251 


[ 21 ] 


territory of another State, it is inoperative, and it is notice to 
nobody. This act, therefore, is of no effect. 

Upon all the grounds thus reviewed, the conclusion is, that the 
title to the Pea Patch island was in the State of Delaware. On 
the 27th May, 1813, that State, by an act of her legislature, ceded 
it to the United States upon conditions having regard to the pub¬ 
lic benefit, and not for any selfish interest of her own. No doubt 
can be entertained that New Jersey would, in the like case, have 
done as her sister Delaware did, had she been free to do so. But a 
private claim had intervened, which she had no rightful power to 
dispose of; and, if it has so happened that, after a long and costly 
litigation, that claim has proved to be unfounded, it is to be re¬ 
gretted that the claimant should have been put to useless expense 
and trouble; but this feeling can have no influence in determining 
the question of right. 

By the cession of Delaware the title passed to the United States. 
The award, therefore, must be,and is, that the title is in the United 
States. 

JOHN SERGEANT. 

Washington, January 15, 1843. 







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